A better discussion of intellectual diversity in the (legal) academy

Nicholas Kristof’s latest column on intellectual diversity in academia has triggered the usual polarized reactions. On the right, a common reaction has been delight that the normally unthinking Kristof is boldly speaking the truth. On the left, a common reaction has been dismay that the normally levelheaded Kristof could say something so silly. Whatever your view, this is not a debate that Nicholas Kristof columns appear likely to advance.

If you’re interested in the topic, I would instead recommend a discussion on intellectual diversity with Larry Kramer and Michael McConnell that was moderated by Bernadette Meyler at Stanford earlier this year. Watch it here:

Kramer and McConnell are focused on law schools, and especially on law school hiring, so their emphasis is pretty different from Kristof’s. But I found Kramer and McConnell significantly more insightful. Although Kramer offers a liberal perspective and McConnell offers a conservative one, they mostly agreed on the state of things and why schools do what they do.

The whole thing is worth watching, but perhaps the most interesting segment starts around the 30-minute mark. At that point, Kramer elaborates on his view that professors necessarily discriminate in hiring because ideology influences views of what arguments appear important and persuasive. When professors have studied an issue for years, and they conclude that a particular methodology or result is patently wrong, they’re going to think that adherents of that wrong view just aren’t all that smart. Because ideology can shape how people approach legal questions, assessments of merit end up being influenced by ideological differences. “If you’re a liberal,” Kramer says, “conservatives just don’t sound as smart to you.” And the same is true with the politics reversed. To conservatives, liberals just don’t sound as smart as conservatives.

Because law schools are seeking the very smartest people, Kramer continues, they will tend to hire candidates who think like other members of the faculty. They’re not trying to discriminate. It’s just that they want the absolute very best, and at the margins someone who disagrees with them naturally seems less sharp. Kramer gives the example that he is disinclined to be impressed by originalists because he has studied originalism and he thinks it is unpersuasive. Because almost all (and maybe all) originalists are right of center, his honest assessments of who is doing the best work end up with a political valence.

I’m reminded of my old post “Brilliant People Agree With Me“:

One of the consequences of confirmation bias is that we are overly impressed by ideas that we happen to share. It’s a natural instinct, if not watched carefully. If you read something that reflects or resonates with your own views, you’ll agree with it. Upon agreeing with it, you’ll think it is highly persuasive. And if it’s highly persuasive, it’s probably brilliant.

In Kramer’s view, schools should try to overcome confirmation bias by affirmatively looking for the best people they disagree with. He gives the example of when he chaired appointments at Michigan and the school had no one in law & economics. Michigan Law faculty members thought law & economics was just wrong, so they didn’t want to hire anyone in the field. Kramer pushed the faculty to hire someone in the field anyway — the best of the wrong group, if you will — on the thinking that the existing faculty’s view of the methodology was getting in the way of a stronger faculty.

There’s obviously room for disagreement with the perspectives Kramer and McConnell offer in the discussion, both descriptively and normatively. Come to think of it, perhaps the agreement between Kramer and McConnell just means that the panel needed some intellectual diversity of its own. I’d be interested to know if others think they were off the mark. But I thought the discussion was worth watching for those interested in the broader topic.

I’ll add two additional thoughts that I don’t think either Kramer or McConnell would find objectionable. First, I gather there is still a necessary judgment call to be made about when to second-guess our judgments of merit and when to double down on them. We can all think of some debates where there is room for reasonable disagreement and others where there isn’t. If we had a perfect ability to distinguish between the two, we would want to correct for confirmation bias when there is room for reasonable disagreement but not where there isn’t. Think of it this way: On one one hand, confirmation bias might make it harder for me to appreciate the merits of scholarship based on priors I don’t happen to share. I should correct for that. On the other hand, surely I shouldn’t put blinders on and treat objectively weak ideas as if they were strong ones. The problem is that there are no obvious neutral criteria for distinguishing the two. It’s still a judgment call, with different sides offering different views of what disagreements are reasonable. It’s turtles all the way down.

Second, I think the dynamics Kramer and McConnell discuss vary considerably by university and by field. In public law fields, for example, ideology tends to have a stronger effect on assessments of merit than in private law. I’m reminded of the recent Time magazine story asking prominent constitutional law professors for the best and worst Supreme Court decisions since 1960. The answers were largely consequentialist, which tends to generate a political valence. But the dynamic tends to be different in fields of private law. There’s a lot of variation depending on the school and the subject area.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/12/14/a-better-discussion-of-intellectual-diversity-in-the-legal-academy/

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