Non-Patent Friday

By Dennis Crouch

UChicago Law Professors Adam Chilton and Eric Posner have a new article out that looks at political bias in legal scholarship. The basic finding is a correlation between a professor’s donation to a political party (Republican or Democratic) and that professor’s “scholarship ideology” (conservative or liberal).

We find that, at a statistically significant level, law professors at elite law schools who make donations to Democratic political candidates write liberal scholarship, and law professors who make donations to Republican political candidates write conservative scholarship. These findings raise questions about standards of objectivity in legal scholarship.

http://ssrn.com/abstract=2478908.

77 thoughts on “Non-Patent Friday

  1. (1) Doesn’t this belong in the “well duh?” category of scholarship

    (2) It’s only an issue when the “bias” in question leads to either

    (a) circumvention or disingenuous misinterpretation of the law,
    or
    (b) inconsistent application of the law.

    I would expect author’s beliefs to influence their scholarly articles. The law isn’t physics, it does not have an objective reality that is fixed whatever we choose to believe.

    Reply
    1. it does not have an objective reality that is fixed whatever we choose to believe.

      Simply wrong – and quite the opposite (you do realize that you place yourself in the 6 WHATEVER camp with your comment, right?).

      Reply
      1. No,

        I understand the law and its history. Perhaps you would like to make an actual argument rather than a vague conclusory statement.

        Reply
        1. The fact that law may change does not change the fact that the law in its current state is objectively knowable.

          That’s an important aspect of law.

          Hardly either vague or conclusory.

          Reply
  2. My favorite line from the article:

    “A full account of the charges and counter-charges of ideological bias in law reviews could easily fill up the Internet, leaving no room for cat videos.”

    Reply
  3. Didn’t we recently have a guest post from a professor basically saying “stop picking on us, we are unbiased”…

    As I recall, the, um, “responses” asked for in regards to important factual predicates and a truly unbiased view of the law went unanswered.

    Now here, we have he attempted nonchalant attitude and practically “that’s normal and should be expected” “foundation” wanting to be accepted.

    A little historical fact: when communists attempted to infiltrate american society, their most successful target were academia. Further, the way to progress in academia is notoriously NOT through merit, but rather, through how well you parrot your superior’s views.

    Attack from the Left.

    Reply
    1. when communists attempted to infiltrate american society, their most successful target were academia

      Are you sure it wasn’t Hollywood? Keep the laughs coming, Billy. Eventually you’ll get around to making your point which probably has something to do with you getting mocked by your English teacher.

      Then you can remind everyone who the most successful targets of ra cist, rightwing conservative axx holes tends to be.

      Reply
      1. successful targets”?

        Not sure what’s meant, unless the successful target is the one who is most able to deflect/defeat/avoid the abuse?

        Reply
        1. Oh right. I forgot that there are no such people in America because Obama got elected.

          LOL.

          Reply
            1. “successful targets”?

              Not sure what’s meant, unless the successful target is the one who is most able to deflect/defeat/avoid the abuse?

              Ask Billy what it means, Mental Midget.

              Reply
              1. It pains me to write this, but in Billy’s context (those you go after to get to join your group), “successful target” was comprehensible.

                Reply
              2. Lol – ask someone else what Malcolm’s gibberish rants mean, ’cause Malcolm does not do answers – only rants.

                Reply
      2. Records released from the era of ‘the red scare’ confirm this as historical fact.

        You may have missed that.

        Reply
      3. Your dust-kicking aside, being anti-communist does NOT mean that one automatically is a believer in the claptrap of the far right.

        Such attempts at ad hominem smearing show just how weak your grasp of reality is.

        Reply
        1. being anti-communist does NOT mean that one automatically is a believer in the claptrap of the far right.

          Thanks, Billy. Now try applying basic common sense to your own b. s. You’ll recall that I wasn’t the one who brought “communists” up as part of some feeble attempt to smear “academia”. That was you.

          Reply
  4. There seems to be a tendency for self-identifying “conservative” law professors to bemoan the fact that they are a minority.

    Here’s a helpful hint: next time the issue of increasing funding for (and access to) public education comes up, try to remember where smart, college-educated people (like law professors) ge nerally come from. It’s not “biased” to acknowledge that liberal states tend to spend more money educating their citizens.

    I’m assuming, of course, that these “conservative” law profs aren’t advocating that law schools hire poorly qualified conservatives just for diversity purposes …

    Reply
    1. So, rather than coming up with a substantive comment you let us know that you think conservatives are all not the brightest bulbs.

      Milly work harder. Your math can do it. Milly’s Math working hard producing little.

      Reply
    2. There seems to be a tendency for [women] or [latinos] or [blacks] or [pick your minority underrepresented in corporate management, in government offices, in higher education, pick your typical situation] to bemoan the fact that they are a minority.”

      FTFY.

      Reply
        1. My point is that any out-group minority has a valid point when it bemoans the fact that it is an out-group minority due to the actions of the in-group.

          What was your point, by the way?

          Reply
          1. Ah, got it. Yes, it can sometimes be lonely if you belong to a minority group and if you are a member of that minority group you should feel free to bemoan that fact. Just as an fyi, I’ll note that exactly zero “conservative law professors” were born into that particular minority group…

            My point for conservative law professors (or conservative academics in ge neral) is that you kinda made your own bed. If you want to make typical conservative arguments that, e.g., our public education needs to be de stroyed or that its unconstitutional to make people pay for it or whatever, then you can expect some conservative states to follow your advice. Then you end up with a lot of poorly educated people from those conservative states who can’t get into college. Meanwhile, the liberals who are promoting better public education are cranking out smarter, liberal people. So when the pool of smart applicants for law school jobs is analyzed, there’s more liberals in there.

            See how that works?

            Reply
            1. Just as an fyi, I’ll note that exactly zero “conservative law professors” were born into that particular minority group…

              Because “being born into” is the key – all other picking on “minorities” is “ok” with Malcolm.

              /eye roll

              Reply
            2. “Just as an fyi, I’ll note that exactly zero “conservative law professors” were born into “

              So, you’re saying it’s a choice?

              Reply
              1. “Just as an fyi, I’ll note that exactly zero “conservative law professors” were born into that particular minority group.

                So, you’re saying it’s a choice?

                Try to believe it, folks.

                Reply
              2. Like being a religious Christian is a choice. Or being Jewish is a choice (at least, being a religious Jew is a choice). Or being a religious Muslim is a choice.

                They were born only into their heritage, not into the choices they made about whether and to what extent to hold certain beliefs.

                Yet despite not being born enslaved to those beliefs, they are protected.

                Conservatism of course is not. But the “born into” is just a distraction.

                Reply
            3. “See how that works?”

              As for the rest of your rant, all I can say is, it’s a rich fantasy life you live.

              Reply
              1. What’s “fantastical” about the proposition that, all other things being equal, states who, e.g., invest far less per capita in educating their citizens produce fewer college-educated people per capita than states who invest far more per capita on education?

                Of course the outcome also depends on what you use that money for. You could, for example, spend a lot of money teaching kids that everything in their ho ly book is literally true, or that slavery was a pretty good deal for black people. You might create a few more conservative law professors that way, I suppose, but I assume these professors who are feeling lonely now aren’t looking for friends like that. Not all of them, anyway.

                Reply
              2. Your characterizations are fantastical. You don’t like the other side’s position, therefore it must be rooted in nothing other than pure, unmitigated evil.

                (e.g., “typical conservative arguments that, e.g., our public education needs to be de stroyed or that its unconstitutional to make people pay for it or whatever”)

                If it helps you to feel good about yourself to construct fantasies that any opinion other than your own is driven by nothing more than “evil thinking” on the part of the other person, fine.

                Enjoy your fantasies.

                Reply
              3. Even better are his pathet1c AOOTWMD in trying to project his fantasies onto others….

                (Well, better in the odd sense)

                Reply
  5. There seems to be a tendency for self-identifying “conservative” law professors to bemoan the fact that they are a minority.

    Here’s a helpful hint: next time the issue of increasing funding for (and access to) public education comes up, try to remember where smart people (like law professors) generally come from. It’s not “biased” to acknowledge that liberal states tend to spend more money educating their kids.

    I’m assuming, of course, that these “conservative” law profs aren’t advocating that law schools hire poorly qualified conservatives just for diversity purposes …

    Reply
  6. I would like to see the following study. Take a random sample of law journal articles (include some Lemley’s) and then figure out what the cite is supposed to support. And, then get participants to read the portion of the cite and ask them whether or not the cite supports the assertion. I know this needs a bit of development to get controls in.

    And, make up the assertions of the article and ask other professors if there are references that support the opposite.

    I think from my experience reading Lemley’s articles that he would fail miserably.

    Reply
    1. I think Lemley would end up in a portion of graph that recommends that ethical action be taken against the professor.

      Reply
    2. Maybe you should find some donors to create “The Liberty School for the Study of Mark Lemley”.

      Imagine the praise that will be reaped upon you!!!

      Reply
      1. So again a substantive comment from me. And likely a way to unmask the intellectually dishonest professors–an objective way at that.

        And from Milly? More nonsense. No wonder anon gets so annoyed at you Milly.

        Reply
        1. The annoyance comes more from the sheer duplicity and AOOTWMD.

          I really don’t care all that much that he has a different viewpoint or wants to express a different viewpoint. I can handle a different viewpoint, and can even talk policy. It is all in how he goes about it. He likes to fashion himself as some sort of “moral compass” against “grifters” when it is how compass that spins out of control.

          Reply
  7. Fascinating stuff. Expect these “professors” to next accept a paycheck from their scholarly law school to tackle the disquieting issue we all from time to time have noticed: that the sun, disconcertingly enough, often can be predicted to rise in the east.

    Reply
    1. the sun, disconcertingly enough, often can be predicted to rise in the east.

      That’s the right side of the map. Clearly a conservative bias. In the morning anyway.

      Reply
  8. Just a note on this: I have often remarked that Republicans such as Rich, Rader and Kennedy (Bilski) seem more on the side of expanding the scope of patentable subject matter, and the Democrats such as Douglas, Stevens and now Breyer were more inclined in the opposite direction.

    It is remarkable that Roberts has been able to get this Supreme Court to issue several unanimous patentable subject matter opinions in a row.

    Reply
    1. Since when was Stevens a Democrat? He may be liberal, but a Democrat?

      He was appointed to the Seventh Circuit by Nixon and the Supreme Court by Ford.

      His position in 2007 was that he had not changed since then. link to nytimes.com

      Reply
      1. You know Erik, as I walking to lunch after I posted that, I recalled that Stevens was indeed a republican.

        My bad.

        So, of course, was Earl Warren who was singularly behind the Brown v. Board of Education, perhaps the most progressive case in the last century.

        And the author of Roe v. Wade, Blackmun, was a republican as well.

        Goes to show you that if you want truly liberal justices, elect a liberal republican president, e.g., Eisenhower, Nixon, Ford.

        Reply
        1. And, don’t remind me, Ford was not elected. Instead he followed the path of Frank Underwood (aka, Kevin Spacey) to first get rid of the reigning VP, ruin the reputation of the reigning president, and then replace him.

          I would give Ford credit for being as clever as Frank Underwood, but I really doubt he was that clever.

          Reply
  9. How is this at all surprising or interesting? Obviously people who donate to the Democratic party would tend to have a more liberal ideology. Why would we not expect this to be reflected in their legal scholarship?

    Reply
  10. I wasn’t aware that anyone expected objectivity in legal scholarship. I have never observed such objectivity in legal scholarship. The finding of its absence is not a discovery, just an affirmation.

    Reply
  11. If someone could show funding/grants TO individual professors from political parties, correlated with what the professors publish, that would be interesting…

    Reply
    1. If someone could show funding from political parties to law professors, that would indeed be shocking.

      Reply
    1. Not only OT, but possibly illegal to make such a comment under a post titled, “Non-Patent Friday”.

      Still, thanks for the heads-up! (Although this one could almost have simply been affirmed by them saying, “Middlebrooks got it right. Why are y’all here?”)

      :-)

      Reply
    2. I’ll go waaaaaay out on a limb here and suggest that a solid 1/4 of existing patents on “new” formulations of pre-existing pharmaceuticals could be tanked for similar reasons. And another 1/4 are just the ordinary invalid ones where the applicant never bothered to file the bogus expert declaration because he/she didn’t need to.

      Don’t write your Examples in the past tense, folks, unless they’ve actually been performed.

      Dr. Bernard Charles Sherman, founder and chairman of Apotex, wrote the ’556 patent application and is its sole inventor. Dr. Sherman leads the development of Apotex’s drug formulations and manufacturing
      processes, and has himself written approximately one hundred patent applications for Apotex. He also directs all litigation for Apotex.

      Will the USPTO or the state bar take any action? What are the odds that this was a one-off event?

      Reply
        1. Ned — I assumed that because he wrote the applications and directed the patent litigation that he had a law degree. I realize now that was a leap. He’s not an attorney. He’s just a super rich ahole:

          Bernard C. Sherman (born 1942), Chairman and CEO of Apotex Inc., is a Canadian businessman. With an estimated net worth of $US 3.7 billion (as of April 2013), Sherman was ranked by Forbes as the 7th wealthiest Canadian and 363rd in the world.

          Regardless, it’s pretty good odds that the “conduct” identified by the district court is just the tip of the iceberg.

          I’d love to have been there for the depositions and cross examinations.

          Reply
          1. assumed… law degree

            LOL – you do realize that the law profession itself has far more liberals than conservatives, right?

            Reply
              1. Do you think the ratio you mention with professors is not reflected with students….?

                I’m certain the law profession is not generally 20:1 politically liberal. So in that regard, no, I don’t think the ratio I mentioned for law profs is reflected in their student body.

                Reply
              2. “Do you think the ratio you mention with professors is not reflected with students….?”

                (Dang, tripped the nniuQ eneG memorial filter and got hung in mod – reposting) —

                I’m certain the law profession is not ge_ne_rally 20:1 politically liberal. So in that regard, no, I don’t think the ratio I mentioned for law profs is reflected in their student body.

                Reply
              3. Perhaps not at the 20:1 scale, but I would bet you that the liberal:conservative balance is reflected heavily on the liberal side.

                Think for a second on the typical pre-law majors of the incoming students.

                Think for a second how the more conservative engineering-based pre-law majors are but a small fraction of the law school student body.

                Admittedly, I do not have hard numbers – and this would make an interesting academic follow-up piece – but I would bet that conservative law students are a distinct (read that as small percentage) minority.

                Reply
    3. DanH, I am surprised the good Dr. did not ditch the entirety of the incriminating evidence against him.

      Folks, the case is about a inventor who concocted a phoney argument to get claims allowed so that he could sue his competitor whose product was made according to the now patented process when the inventor “knew” that the competitor was using that process through reverse engineering.

      Held, patent unenforceable.

      Reply
      1. I am surprised the good Dr. did not ditch the entirety of the incriminating evidence against him.

        It’s very difficult to hide data that never existed. ;)

        And by all accounts he did manage to ditch a large portion of his memory.

        Reply
  12. Do they have anything equivalent to the Ig Nobel awards in legal scholarship? If so, this paper might be a strong contender for a finalist.

    Yes, folks, it’s true: law professors who dare to express their (presumably informed) opinions about the law (or trends in the law) do tend to support the political party more closely aligned with those opinions. Who could have imagined? It’s almost as if law professors are human beings like everybody else, capable of using their brains to vote for those people more likely to effect the laws/policies they hope to see effected.

    Related to this, it might be mildly interesting to see, e.g., whether political affiliation tends to correlate with some feature of the publications of researchers who study, say, signal-processing pathways in fruit flies but … law professors and the two major political parties in the US? Yawn.

    Anyway, I’m not sure if I can bring myself to actually read this paper without some more encouragement. I’m mildly curious as to how the authors “objectively” determined which papers were “liberal” and which were “conservative” …

    Reply
    1. “Yes, folks, it’s true: law professors who dare to express their (presumably informed) opinions about the law (or trends in the law) do tend to support the political party more closely aligned with those opinions. Who could have imagined?”

      Well, for example of someone who (apparently) could not have imagined, consider all those law profs on teevee arguing strenuously that it doesn’t matter if they support (D)-type candidates and (D)-type policies, because when they opine on teevee for the benefit of CNN’s audience or when they write legal scholarship they are of course focusing strictly on The Law and “leave their political ideology at the door”.

      Reply
      1. Ah, but you’ve reversed what I’ve written. Remember, this is “correlation” that is being discussed, not causation.

        It’s quite a different claim to suggest that because X votes Republican, X twists the interpretation of the law to align them with Republican policies. A lawyer working for a political party might be inclined to do that (or obliged to that). But a law professor? Seems unlikely unless the professor was angling for a job working for one of the parties or seeking office as a member of one of the parties. There aren’t many such law professors out there.

        consider all those law profs on teevee arguing strenuously that it doesn’t matter if they support (D)-type candidates and (D)-type policies

        This happens regularly on TV? What channel? I stopped watching TV news years ago (I don’t understand why anybody bother would unless they were trapped in a wheelchair in an airport bar) so “all these law profs” you refer to are a mystery to me.

        I’m also guessing that when the law professors state that their political affiliation (D or R) doesn’t affect their analysis (e.g., cause them to introduce logical or legal errors as a result of “bias”), it’s probably true nearly all of the time. Their “bias”, if any, would exist independently of any political affiliation. In other words, their political affiliation (D or R) reflects that “bias” (true of nearly everyone) and doesn’t cause it.

        On the other hand, the group of law professors who seek out TV appearances may include more of those type of folks I described above, i.e., profs angling for a job working for one of the political parties or seeking office as a member of one of the parties.

        Reply
        1. “Ah, but you’ve reversed what I’ve written. Remember, this is “correlation” that is being discussed, not causation.”

          Correct on the latter part, but I don’t think I’ve reversed what you wrote.

          As for teevee – I spend a lot of time in airport lounges (hey, free booze), so you see them on CNN (which I mentioned); and additionally many of them (T10-type law profs) are recruited for soundbites on Slate, HuffPo, TNR, the Atlantic (etc.) pieces that I read.

          They all claim their opinions are not based on their particular ideologies. As mentioned, they assert that they “leave their political ideology at the door” when writing legal scholarship or when providing legal analysis of an upcoming S.Ct. case.

          So, while you and I (and all other here it seems) are unsurprised at the results of this, uh, “study”, and while you ask who WOULD be surprised at them, I suggested that it is those animals studied in this particular zoo who are the ones completely ignorant of their own circumstances.

          Reply
    2. Well put.

      Unsurprisingly, it turns out that what gives rise to political affiliation statistics, and publication ideology statistics, are individual people!

      Reply
  13. (from the paper) “A full account of the charges and counter-charges of ideological bias in law reviews could easily fill up the Internet, leaving no room for cat videos.”

    I’ve never met these Chilton/Posner fellows, but for this quote alone and for being willing to put it into their paper, I’d buy them a beer on a Friday afternoon.

    Reply
  14. “The basic finding is a correlation between a professor’s donation to a political party (Republican or Democratic) and that professor’s “scholarship ideology” (conservative or liberal).

    Shocking.

    Also, one has to wonder about the methodology, given the fact that in some 200+ US law schools with thousands of law profs, they probably had trouble scraping together 10 conservative profs with output to review for their study.

    That’s hardly a statistical universe.

    Reply
    1. “…probably had trouble scraping together 10 conservative profs ”

      LoL on reality mirroring my sarcasm above.

      In their initial sampling of 140 random lawprofs, less than 6% could be labeled conservative, so they had to punk their methodology by searching for and finding conservative law profs to add to the set under review, so as to end up with at least 10% conservative leaning lawprofs in their dataset.

      Reply

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