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).