by A Bonica · 2018 · Cited by 38 — adam bonica is an Assistant Professor of Political Science at Stanford on the 2012 AALS directory because it was the most recent version in pdf form

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1The Legal Academy™s Ideological UniformityAdam Bonica, Adam Chilton, Kyle Rozema, and Maya SenABSTRACTWe study the ideological balance of the legal academy and compare it with the ideology of the legal profession more broadly. To do so, we match professors listed in the Association of American Law Schools™ Directory of Law Teachers and lawyers listed in the Martindale- Hubbell directory to a measure of political ideology based on political donations. We ˜nd that 15 per-cent of law professors, compared with 35 percent of lawyers, are conservative. This may not simply be due to differences in their backgrounds: the legal academy is still 11 percentage points more liberal than the legal profession after controlling for several relevant individual characteristics. We argue that law professors™ ideological uniformity marginalizes them but that it may not be possible to improve the ideological balance of the legal academy without sacri-˜cing other values.1. INTRODUCTIONIn November 2016, Jeff Sessions was nominated to be the attorney gen -eral of the United States. Sessions was a highly controversial ˜gure at the time of his nomination: he had a reputation for being extremely conservative, and many on the left viewed him as holding deeply trou-bling, racist views (Nakashima and Horwitz 2016; Zapotosky, Horwitz, and Nakashima 2017). Before the Senate voted, over 10 percent of all law professors in the United States posted a widely circulated open let-ter opposing Sessions™s nomination, stating that they believed he fiwill not fairly enforce our nation™s laws and promote justice and equality in the United Statesfl (Aaron et al. 2017). However, the law professors™ let-ter was quickly dismissed by many conservative lawmakers, public ob- is an Assistant Professor of Political Science at Stanford University. ˚˛˚˝ is an Assistant Professor of Law and Walter Mander Research Scholar at the University of Chicago Law School. is the Wachtell Lipton Fellow in Be-havioral Law and Economics at the University of Chicago Law School. is an Associate Professor of Public Policy at the John F. Kennedy School of Government, Har-vard University.

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2 / THE JOURNAL OF LEGAL STUDIES / VOLUME 47 (1) / JANUARY 2018 servers, and journalists precisely because it was written by law profes-sors (see, for example, Huffman 2017; Presser 2017). A spokeswoman for Sessions rejected the letter as fibusiness as usual for the same far-left academics who trot out letters opposing just about any conservative or Republican who™s nominated to a key position by a Republican presi -dentfl (Johnson 2017). One Republican member of the Senate Judiciary Committee, Lindsey Graham, even joked, fiWe™re about to get an answer to the age-old question: Can you get con˜rmed attorney general of the United States over the objection of 1,400 law professors? I don™t know what the betting line is in Vegas, but I like your chancesfl (C-SPAN 2017). This statement was met with laughter from the audience. Sessions was ultimately con˜rmed.Was it accurate to characterize the signatories of the letter, and the legal academy more generally, as uniformly liberal? In fairness to those who dismissed the letter, ˜ve prior studies of the ideologies of law pro-fessors ˜nd that at least 75 percent of law professors are liberal (Merritt 1998; Cardiff and Klein 2005; McGinnis, Schwartz, and Tisdell 2005; Lindgren 2016; Phillips 2016). Although these studies bring evidence to this debate, they all examine limited samples of law professors. More-over, even if a large majority of law professors are liberal, so too are lawyers, particularly graduates of elite law schools (hereafter, elite law-yers) (Bonica, Chilton, and Sen 2016). It thus may be the case that law professors are not ideologically out of step with the legal profession. In-political ideology of the population from which it is drawn. If so, this would suggest a more liberal slant in the legal community more generally, but not the legal academy speci˜cally. If not, this would suggest that any number of mechanisms are at work to limit the representation of conser-vatives in the legal academy.In this article, we study the ideological balance of the legal academy and compare it with the ideological balance of the legal profession. To do so, we match 10,040 law professors listed in the 2012 Directory of Law Teachers from the Association of American Law Schools (AALS) to a comprehensive database of political ideology that is based on political donationsŠthe Database on Ideology, Money in Politics, and Elections (DIME; Bonica 2016). We also match lawyers listed in the Martindale- Hubbell directory to their political donations. Through this approach, we are able to improve on past work in three ways. First, whereas other stud-ies used limited samples of law professors (for example, professors from top law schools), we use all law professors listed in the 2012 AALS Di-

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IDEOLOGICAL UNIFORMITY / 3rectory of Law Teachers who have made political donations. Second, our measure of political ideologyŠthe Campaign Finance score ( CFscore)Šplaces individuals on an ideological spectrum, which offers richer infor-mation on individuals™ political leanings than using a discrete measure of ideology (for example, donations to a political party), as in previous studies. Third, we use data on the ideologies of both law professors and lawyers and are therefore able to conduct the ˜rst comparison of the ide-ology of the legal academy with that of the legal profession.Using this new data set, we ˜nd that approximately 15 percent of law professors are conservative compared with 35 percent of lawyers. Law professors also hold more ideologically extreme views than lawyers: only 32 percent of law professors, compared with 67 percent of lawyers, are either moderately liberal or moderately conservative. And even though law professors have backgrounds similar to those of elite lawyers, and elite lawyers are more liberal than lawyers overall, individual character-istics do not fully explain the 20-percentage-point gap. After estimating a series of regressions, we ˜nd that the legal academy is still 11 percent-age points more liberal than the legal profession after controlling for sev-eral relevant individual characteristics. In short, we ˜nd that law profes-sors are more liberal than elite lawyers even after controlling for relevant shared characteristics. This means that there may be sorting into the legal academy or discrimination on the basis of ideology; however, we cannot adjudicate between these and other possible mechanisms (see generally Phillips 2016).This ideological uniformity in the legal academy has potentially broad implications. As the law professors™ letter opposing Sessions illustrates, the legal academy™s ideological homogeneity can limit its political credi -bility. In fact, matching the signatories of the letter to our sample of law professor ideology, we ˜nd that only 4 percent of the signatories appear-ing in our data are conservative.1 Thus, the commentators and politicians in their assumptions. Moreover, the decision to speak out against Ses-sions was not a rare act of advocacy. Numerous law professors ˜le briefs before state and federal courts, and many others weigh in on important policy issues. These activities might be undermined by the professoriate™s 1. Note that we were able to match 754 of the signatories to their political dona -tionsŠthe law professors whom we were unable to match could have made no donations, switched law schools between 2012 and 2016, or not been a professor by 2012.

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4 / THE JOURNAL OF LEGAL STUDIES / VOLUME 47 (1) / JANUARY 2018 ideological homogeneity. To the extent that is true, the introduction of However, reducing the ideological uniformity of the legal academy may have drawbacks. Most notably, adopting ideological hiring prefer-encesŠlike promoting the hiring of conservative facultyŠcould nega-tively affect other hiring prerogatives, including the goal of achieving a gender balance and the priority of hiring underrepresented minorities. By using information on the gender of law professors and an AALS list of 1,417 minority law professors, we assess ideological differences by gen-der and minority status. We ˜nd that male law professors are roughly two times more likely to be conservative than female law professors and that nonminority law professors are roughly one and a half times more likely to be conservative than minority law professors. This provides at least some suggestive evidence that a trade-off between ideological bal-ance and diversity-oriented hiring prerogatives likely exists.This article proceeds as follows. In Section 2 we discuss prior research on the topic. In Section 3 we introduce the data. In Section 4 we study the ideologies of law professors overall, by expertise, and by law school. In Section 5 we study the ideological balance between the legal academy and the legal profession. In Section 6 we discuss the limitations of the re-search and conclude by explaining the trade-offs associated with increas -ing ideological diversity.2. BACKGROUNDPolitical ideology affects legal decision- making. For example, political ideology affects the voting of Supreme Court justices (Segal and Spaeth panels (Miles and Sunstein 2006), and even predicts the conclusions that law professors reach in their research (Chilton and Posner 2015). In fact, the relationship between ideology and legal decision- making is thought to be so strong and persistent that it is now widely believed to be one of the 2004; Ruger et al. 2004).The relationship between ideology and legal decision- making has given rise to concerns over the ideological balance in the legal acad-emy and, in particular, the implications stemming from an underrepre-sentation of conservatives. The strong link between ideology and legal

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IDEOLOGICAL UNIFORMITY / 5decision- making implies that law professors, who are charged with train-and policy, should not be overwhelmingly from one side of the political spectrum. Concerns about the ideological imbalance of the legal academy have recently drawn attention from both academics and politicians. For example, a group of law professors petitioned the AALS to promote more ideological diversity in the legal academy (Barnett 2017), and bills have been introduced into two state legislaturesŠIowa and North CarolinaŠthat would require public universities to promote ideological diversity in faculty hiring (Schmidt 2017).The belief that law professors are predominantly liberal not only is based on anecdotal evidence but also has been documented in a number of empirical studies. At least ˜ve studies investigate the political ideolo -gies of law professors.2 Table 1 summarizes the ideologies of law profes-sors estimated in each study. Although these studies use different samples and methods for identifying political ideology, all ˜ve ˜nd that between 75 percent and 86 percent of law professors are liberal.That said, even if 86 percent of law professors are liberal, it does not mean that they are necessarily ideologically out of step with the legal profession. Instead, the handful of prior efforts to study the ideologies of American lawyers all ˜nd that lawyers are also a very liberal group (Muller 2013; Roeder 2014). Bonica, Chilton, and Sen (2016) ˜nd that 68 percent of lawyers who made political donations gave more money to Democrats than Republicans. And this ideological tilt is even more extreme among elite lawyers, with liberals making up 76 percent of grad-uates of elite law schools (the so-called top 14) (Bonica, Chilton, and Sen 2016).This observation motivates several of the empirical analyses that fol-low. In particular, law professors may be more liberal than the general public, but they might be comparable to the population of elite lawyersŠ the population from which they are drawn. Although we cannot con˜rm or rule out mechanisms, observing no ideological differences between the 2. See Phillips (2016) for a summary of this research. In addition to these ˜ve studies, two others indirectly examine the ideologies of law professors. First, Chilton and Posner (2015) examine the relationship between political ideology and the political leanings of legal scholarship using a sample of 156 law professors from the top 14 law schools. They ˜nd that 75 professors were net donors to Democrats, 24 professors were net donors to Republicans, and 57 professors made no donations. Second, Bonica, Chilton, and Sen (2016) examine the political ideologies of lawyers in the Martindale- Hubbell directory and ˜nd that lawyers who identify as law professors are more liberal than other lawyers.

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Table 1. Studies of the Ideologies of Law Professors StudySampleNMeasureFindingsMerritt (1998)Entry-level hires from 1986 to 1991832Self-reported survey of political beliefs75% Liberal, 10% conservativeCardiff and Klein (2005)Nonrandom set of California law schools254Voter registration records80% Democrats, 20% RepublicansMcGinnis, Schwartz, and Tisdell (2005)Rank of assistant, associate, or full professor as of the 2001Œ2 school year at the top 21 law schools1,215Political donations from 1992 to 200281% Democrats, 15% RepublicansLindgren (2016)Law faculty at the top 100 law schools in 1997710Party identi˜cation80% Democrats, 13% RepublicansPhillips (2016)Full-time tenure-track faculty for the 2011Œ12 school year at the top 16 law schools1,011Campaign donations, voter registration records, organizational af˜liations, résumés, and scholarship86% Liberal, 14% conservative or libertarian

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8 / THE JOURNAL OF LEGAL STUDIES / VOLUME 47 (1) / JANUARY 2018 zations. In total, DIME contains over 250 million donations made from over 20 million donors.5The database provides a measure of ideology known as the CFscore. The CFscores are calculated by ˜rst placing candidates on a unidimen -sional ideological scale on the basis of their share of common donors. Individual donors are then placed on the same scale on the basis of the weighted share of the donations given to candidates. The scale is normal-ized such that it has an average of 0 and a standard deviation of 1 with respect to the population of US donors.6 For instance, Bernie Sanders has a CFscore of ˜1.89, Barack Obama has a CFscore of ˜1.16, Mitt Rom-ney has a CFscore of .90, and Donald Trump has a CFscore of 1.29.To offer a slightly simpli˜ed illustration of how the donors™ scores are constructed, consider two examples. First, if an individual™s only do-nation is to Barack Obama, her CFscore would be ˜1.16. This is be-cause her CFscore would simply be Barack Obama™s CFscore. Second, if an individual made two-thirds of her lifetime donations to Bernie Sanders and one-third of her lifetime donations to Barack Obama, her CFscore would be ˜1.65. This is because her CFscore would be calculated as two-thirds Bernie Sanders™s CFscore of ˜1.89 and one-third Barack Obama™s CFscore of ˜1.16 ((˜1.89 × 23) + (˜1.16 × 13)).3.3. MatchingWe use the professor™s name, the law school where he or she works, and the law school™s location to match to DIME. In addition to the data on law professors™ identities, we obtained data on the identities of lawyers from the Martindale- Hubbell directory. To match these data to DIME, we use the lawyer™s name, employer, and the state of residence from the Martindale- Hubbell directory of lawyers (for information on the match-ing process, see Bonica and Sen 2015). Using this process, we ˜nd that the donation rate for law professors is 64 percent. To put this in perspec-tive, Chilton and Posner (2015) hand match professors from top 14 law schools to their donations and ˜nd a donation rate of 63 percent. This donation rate is higher than that for Americans in general (roughly 5 per-cent) and for lawyers in the Martindale- Hubbell directory (41 percent).5. We use version 3 of the Database on Ideology, Money in Politics, and Elections, which at the time of writing is not publicly available.6. This measure has been extensively validated (Bonica 2014; Bonica and Sen 2015) and used in political science and legal research (for example, Thomsen 2014; Chilton and Posner 2015; Wood and Spencer 2016).

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IDEOLOGICAL UNIFORMITY / 93.4. Robustness of Campaign Finance ScoresWe investigate two concerns about why CFscores may not accurately capture the ideological makeup of the legal academy. One concern about using political donations as a measure of ideology for law professors is that professors may donate to candidates for reasons other than shared ideologies. This may happen, for example, if a professor makes dona -tions to former classmates who run for of˜ce with whom they do not share ideological views. To assess this concern, we exploit the fact that donations to state and local candidates are more likely to be orthogonal to ideology because law professors are less likely to know federal and presidential candidates.7 We therefore test whether donations to state and local candidates are similar to donations to federal and presidential can-didates, and we ˜nd no evidence that the ˜ndings are sensitive to the type of donations used to construct the CFscore (see Figure A1).Another concern with using CFscores is that they may lead to different classi˜cations than more traditional measures of ideology like political party. For instance, a law professor who donates more to conservative candidates but makes one large donation to a liberal candidate may have a moderately liberal CFscore. If this happens systematically, differences in our results and prior research could be driven by the measure of ide-ology rather than actual differences in the ideological distribution. We therefore examine the breakdown of professors™ ideology using a coarser measure of ideologyŠwhether a law professor gave solely to Republican candidates, solely to Democratic candidates, or to both Republicans and Democrats. We ˜nd no evidence that CFscores overstate the liberal tilt of the legal academy (see Figure A2).4. THE IDEOLOGY OF THE LEGAL ACADEMYIn this section, we assess several patterns of law professor ideologies, in-cluding variation by area of expertise and across law schools. We begin by exploring the overall distribution of law professors™ ideologies.7. Of course, there are exceptions. For example, professors at the University of Chi -cago may have donated to Barack Obama because of personal relationships even if Obama™s ideology was substantially different from their own.

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10 / THE JOURNAL OF LEGAL STUDIES / VOLUME 47 (1) / JANUARY 2018 4.1. Ideologies of Law Professors Overall1 displays the distribution of the CFscores for the 6,441 law pro-fessors who made donations (prominent politicians™ CFscores are marked for reference). The distribution is roughly bimodal, following the two-party ideological divide in American politics. The average CFscore of do -nating professors is ˜.86, which is liberal, but less liberal than Barack Obama (˜1.16).-ogy of Americans), 15 percent of law professors are conservative. If we de˜ne moderately conservative as between 0 and 1, 54 percent of con-servative professors are moderately conservative. If we de˜ne moderately liberal as between ˜1 and 0, 27 percent of liberal professors are mod-erately liberal. We use these de˜nitions of moderately conservative and liberal throughout.4.2. Ideologies of Law Professors by SubjectNext we examine whether the ideologies of law professors vary according to the subjects they teach. One might expect political ideology to stem Figure 1. Ideologies of donating law professors

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IDEOLOGICAL UNIFORMITY / 11from, or perhaps serve to motivate, law professors™ research and teaching activities.We examine this possible relationship by assessing how the ideologies of law professors vary according to the subjects they teach, as listed in the AALS directory.8 Figure 2 plots the average and median ideologies of law professors in each of the subject areas. The teaching areas are sorted by the average CFscore of professors in the subject area from most liberal (feminist legal theory) to most conservative (military law). Some of the subjects that have a reputation for being the most liberal are taught by, on average, the most liberal professors. For example, subjects taught by the most liberal professors on average (in terms of average CFscore) are feminist legal theory, poverty law, women and the law, critical race the -ory, immigration law, disability law, welfare law, and human rights law. Similarly, subjects with the reputation of being conservative are taught by some the most conservative professors on average, including military law, estate planning, oil and gas rights, securities regulation, admiralty, sports law, equity, and law and accounting.To investigate the forces driving the differences, we also assess the distribution of CFscores by subject area. 9 We ˜nd that a key difference between the ideologies of law professors by subject is not a noticeable shift from liberal professors to moderately liberal professors but the pres-ence, if any, of conservative professors in the ˜eld. In particular, there are few conservative professors teaching the subjects that are most liberal on average; by contrast, subjects that are more conservative on average are taught by a majority of liberal professors but at least some conservative professors. Thus, the mere presence of some conservatives is suf˜cient to differentiate average ideological differences among law professors be-tween subject areas.4.3. Ideologies of Law Professors by Law SchoolWe anticipate some of the greatest variation in the ideologies of law pro-fessors to be across law schools. Law schools have different ideological cultures, with differences in the ideologies of alumni comporting with the 8. Subject area refers to the subject matter taught, which could differ from research and writing areas. Although we believe that scholars generally tend to teach in areas re-lated to their research areas, we know this is not always true. In addition, professors may have multiple teaching areas listed. We include each professor in each subject area for which he or she is listed.9. As discussed in Section 5, Figure 8 plots the ideological distributions of professors for coarse areas of expertise.

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