Balkinization: Affirmative Action for Conservatives II

Affirmative Action for Conservatives II

Mark Tushnet

Is the typical conservative crud (in public law) systematically worse than the typical liberal crud? My sense, though, subject to revision in light of reactions, is, “Yes, because of choices that the authors have made.” Some of what follows is overstated to make my points, but not, I hope, so much as to distort the account of what I’ve observed.

First, if we bundle three generic articles we get the modal entry-level conservative article. The generic titles are: (1) “The Original Public Understanding of Article ---, Section ---, Clause ---“; (2) “A New Epicycle on Original Public Understanding Originalism”; and (3) “Why Justice Scalia Was Right In [case name] [doctrinal position].” On the merits of those articles (the comparison with the modal liberal crud comes later): B-o-r-r-r-i-n-g. The odds that any of these articles will be interesting are quite slim. With version (1), either there’s a lot of scholarship on Article ---, Section ---, Clause ---, or there isn’t. If there is, the odds that the author is saying something new and interesting are vanishingly small. If there isn’t, well, there’s probably a good reason why – like, who cares about Article ---, Section ---, Clause ---. The problems with version (2) are obvious: tweaks can be important within an established paradigm, but tweaking originalism isn’t likely to demonstrate the author’s ability to do scholarship even well behind the leading edge. And, with version (3), Justice Scalia’s explanation for his position is likely to be better than the author’s – or, put another way, why bother to read this article when I can read Justice Scalia’s presentation itself?

Of course, what I’ve just done is non-comparative. The comparison with liberal crud is that liberal crud extends across a wider range of topics – or so it seems to me. It might have some data about police practices that’s new to me, even if the data ends up “informing” a quite pedestrian normative analysis. Or, it might tout public benefit corporations as the solution for all that ails us; qua solution, the article’s likely to be boring, but at least I’ll know something about public benefit corporations that I didn’t know before. (A confession: I stop reading articles when they get to the “policy prescription” section. Really, I do.) So, roughly, liberal crud is marginally more interesting, because marginally more informative, than conservative crud. (Mentors for conservative entry-level prospects might do well to guide them away from the modal topics and into other areas – an analysis of police-citizen interactions from the point of view of a police officer, for example.)

The foregoing deals with largely doctrinal scholarship. But, we know that there are two paths of entry into the legal academy these days – the doctrinal and the interdisciplinary. I focus on economics and philosophy/political theory as the main law-related disciplines of interest here. Conservative entry-level prospects face a structural problem along the philosophy/political theory path, though it’s not of the legal academy’s making. It’s going to be difficult for such a person to find a Ph.D. program offering the opportunity to develop a conservative intellectual agenda in philosophy/political theory, because there aren’t that many Ph.D. programs that would encourage the development of such an agenda. The consequence is that interdisciplinary entry-level prospects tend to be self-educated in philosophy/political theory. And the consequence of that is that their work is likely to be along well-trodden lines.

The prospects in economics are somewhat better, although still somewhat limited when we confine attention, as I do here, to public law. Finding a public-choice oriented graduate program is not all that difficult, and developing a conservative public-choice intellectual agenda for public law probably doesn’t face the structural problem just identified. (The screening bias, that is, occurs because philosophers/political theorists in graduate departments are likely to lean more liberal than public choice economists.) Even so, my sense – again from reading around – is that there’s a fair amount of self-education in public choice work.

And, on the merits, the cruddy interdisciplinary work produced by self-educated candidates seems to me both simple-minded relative to what’s being done “in the discipline” and simple-minded relative to the cruddy interdisciplinary work that self-educated liberals do. In philosophy/political theory, the work of the former group seems to me to tend to be a rather simple libertarianism – even as “real” philosophers and political theorists have developed more sophisticated libertarian approaches. (Read virtually any issue of Social Philosophy and Policy and you’ll see what I mean.) So, what the entry-level candidate presents is, again, boring. (I’ll return to philosophy/political theory below.)

As to economics, my sense is that there are several versions of conservative entry-level work. The first, and I think probably most common, is Economics 101 – relatively pure free-market economics – applied to some issue. Here the moves are well-known, and making them doesn’t demonstrate that the candidate has any distinctive strength. (Roughly, anyone who addressed the issue via Economics 101 would produce what this candidate has produced.) And, it’s typically trivially easy to identify aspects of the issue that don’t fit the Economics 101 paradigm. The same two difficulties attend the second version, classic public choice theory – in its “interest groups dominate politics” or “concentrated benefits, diffuse costs” versions – applied to some issue. Again, the moves are well-known and subject to pressure by identifying features of the phenomenon that don’t fit classic public choice assumptions. Third, and much more promising, is work debunking liberal applications of behavioral economics to some problem (these range from “What’s Wrong with Nudges” articles to articles explaining why individual-level behavioral biases wash out in markets that aggregate individual choices). But, there are damned few in this third category.

Again, the foregoing is non-comparative. But, as with doctrinal scholarship, liberal crud has a wider range – “Here’s a new problem to which behavioral economics provides guidance toward a policy solution.” In the end the solution might be nonsense, or the problem nonexistent, but along the way the reader will have learned something about the phenomenon (concentration of fast food restaurants in low-income communities, to take an example I’ve been working with in my class this semester). And, at least as important and maybe more important, liberals producing cruddy scholarship can draw upon second- and even third-generation public choice scholarship in ways that conservatives appear to find difficult. (I’ve seen relatively little, for example, that draws upon Elinor Ostrom’s work to support, as it pretty clearly does, conservative policy positions – but here maybe I’ve missed things in my reading.) So, the liberal crud is fancier than the conservative crud.

There’s one area of conservative scholarship in a sort of interdisciplinary vein that – for me – is largely exempt from the argument I’ve developed (which is, recall, that liberal crud is marginally better than conservative crud because it has a wider range). Here I return to philosophy/political theory. As I’ve said, much, probably most, of the entry-level conservative work inflected with philosophy/political theory is libertarian-influenced. That’s certainly true of such scholarship on free expression. But, there’s another conservative tradition, in which a community’s values have normative weight as such. For me, that tradition is best represented in the free speech domain by Harry Clor’s old book on obscenity, but lots of Walter Berns’s work fits here as well. (A shout out here to Bruce Frohnen – and to lateral hiring committees.) You can call it a Burkean tradition in political theory, though that label may carry more freight than using it is worth.

For myself, work in that tradition is really interesting – even the cruddy work is thought-provoking precisely because it’s outside the main lines of liberal pap and conservative libertarian crud. Today, I think, it centers on law and religion, which is, as I’ve blogged before, undergoing a substantial revival in its intellectual heft. One “problem” in this subfield, though, is that you probably have to be religious to “get” the pull of the intellectual tradition, and – if that’s correct – the conservative entry-level candidate may not have much choice about engaging in the subfield in a way that would elevate her/his work above the rest of the crud. So, for me, the bottom-line question after all this is, “Do conservative entry-level scholars working in law and religion have a more difficult time than their liberal peers?” Maybe they do, which would be a matter of regret. For the rest, Sturgeon’s Law appears to hold in a politically even-handed way (in light of all the qualifications in the first of these posts).

Posted 9:19 AM by Mark Tushnet [link]