Proposals for Improving Dialogue and Reducing Ideological Polarization in the Legal World

Legal scholar and blogger Eric Segall puts forward several excellent suggestions.

I rarely agree with prominent liberal legal scholar and blogger Eric Segall (see, e.g., our debate over originalism and my 2022 appearance on his podcast). But in a recent blog post, he makes some valuable suggestions on improving cross-ideological dialogue and reducing the harmful effects of polarization in the legal world:

[R]eflecting society-at-large, America's law schools are becoming increasingly divided along political lines with both sides retreating to their respective corners. This development is troubling because echo chambers produce, well echoes, not meaningful attempts at compromises and solutions palatable to broad constituencies. But if there's no one in the room arguing for different positions, compromise becomes much more difficult and stubbornness runs rampant.

Evidence of this polarization is all around us….

As to legal education specifically, there are a number of factors increasing polarization inside law schools making it more difficult to break through the echo chamber. One of the the largest causes of this problem is the binary choice offered by the Federalist Society and the American Constitution Society. These two organizations, one conservative/libertarian, the other liberal/progressive, reflect the divisions in our larger society as well as our two-party system of politics. Although at the student level, these two organizations often work together to put on panels and debates, at the national level where it counts the most, both organizations put on highly partisan programs that increase polarization where the two sides barely speak to each other….

Some will respond that both groups invite a few folks from the other side to their national conventions. For example, I was invited to Fed Soc this year for a panel on affirmative action. But these folks are usually a distinct minority and rarely make an appearance at the galas and other big celebrations. Moreover, my understanding is that both conventions are attended almost exclusively by folks whose values are consistent with the leadership of both organizations so that neither convention provides a good environment for across-the-aisle talk.

In addition to the polarization caused by Fed Soc and ACS students, professors, and judges generally staying in their own lanes, the unwillingness of law students (of all people) to hear from people with different views than their own is getting worse every year. At the University of California at Berkeley, nine student groups said they would not invite any speaker who supports Zionism (regardless of the topic of the event). At numerous law schools there have been controversies over who can speak, to whom, and under what conditions. Students retreating to their own corners is not good for legal education, the broader legal community, or society as a whole.

So, I have a few proposals. They are not likely to go very far but, as they say, nothing ventured, nothing gained.

1) Both Fed Soc and ACS should invite justices from the other side to speak at their national conventions, and those justices should show up. Symbolically, this intersection would be of great value and substantively it would be good for each group to pay close attention to how they are perceived by the other side and to hear arguments they do not normally hear. It would also be a positive development for the justices to be exposed to the different ideas and values held by folks who disagree with them.

2) The leadership at every school with Fed Soc and ACS chapters should strongly encourage and incentivize these groups to co-sponsor as many events as possible. We do this at Georgia State and the results are usually wonderful. Not only do students hear more varied arguments but they get to know and even like students in the other group. Such connections can have positive long-term effects.

3) Both groups should sponsor local and national events where they invite one or two people representing the other group to speak with opposing responses coming exclusively from the audiences. This would help people wrestle with opposing arguments in a direct way rather than through a third party.

4) Federal judges, especially the justices, should hire at least one law clerk every year with politics different from their own. I'll never forget my clerkship with a conservative, GOP judge who was genuinely interested in my views on the few highly political cases he faced while I was his clerk. He once told me that it was in those cases specifically where he liked me pushing him to make sure he was making the right decisions. Sadly, on both sides, that attitude is fading fast.

5) The leading legal blogs, including this one…. should reach out to folks on the other side and invite them to write posts with different perspectives than the blog usually offers. Years ago, I presented this idea in person to Eugene Volokh and Jack Balkin, who both run highly visible and successful blogs. They rejected the idea out-of-hand saying that legal bloggers do this now simply by responding to experts on other blogs. But that response missed the point of my idea. It is the sharing of space, both physical and virtual, among folks with different views that is important because being in the other side's house reduces both extremism and dogmatism.

I agree with pretty much all of these suggestions! Here are a few additional thoughts and ideas.

First, the situation at some of the institutions Eric mentions is less bad than he suggests. The standard practice in organizing panels at the Fed Soc National Lawyers Convention is to try to have at least two left-liberal speakers on each one (out of a total of four or five participants). I know because I am a longtime member of two of the Executive Committees that organize such panels. But it is true, as Eric notes, that these "oppositional" speakers rarely stay much beyond the time they are on stage for their panel, or participate in other convention events. My impression is that the ACS national convention (where I have been a speaker twice—see, e.g., my talk on race, zoning, and property rights at the 2017 convention) usually has only one oppositional speaker per panel.

Before speaking at the 2017 ACS convention, I happened to mention I was planning to participate to longtime Fed Soc President Gene Meyer. He said he was happy I was doing it, but asked me to make him one promise: "Don't just give your presentation and then leave," he said, "stay and talk to the people afterwards." I did exactly that, and Meyer was right to suggest it makes a difference. ACS and Fed Soc might think about how to expand opportunities for these kinds of informal interactions.

When it comes to blogs, the Volokh Conspiracy has in fact often had left-liberal scholars as guest bloggers (notable examples include Akhil Amar and Cass Sunstein) or participants in symposia. Most recently, prominent liberal election law specialist Edward "Ned" Foley took part in the symposium I organized for participants in the National Constitution Center "Guardrails of Democracy" project (see his posts here and here). Jack Balkin's Balkinization blog often has conservative or libertarian guest-bloggers as participants in symposia. I have been one of them myself (e.g. here and here). Jack also interviewed me on his blog about my books Free to Move: Foot Voting, Migration, and Political Freedom and The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain (see here and here). Way back in 2013, Jack even took me up on the suggestion to do a series of guest-blogger posts on my then-new book Democracy and Political Ignorance: Why Smaller Government is Smarter. I reached out to Jack then (and on some later occasions) precisely for the purpose of engaging in cross-ideological outreach, so that I would not just be presenting my ideas to people likely to already agree with them.

That said, Fed Soc, ACS, and various legal blogs (this one included!) can certainly do more to foster cross-ideological dialogue. For example, as noted above, oppositional speakers at the ACS and Fed Soc national conventions should be more fully integrated into the event as a whole, including informal interactions. It is also true they should make a point of inviting judges opposed to their preferred judicial philosophy.

Like Eric, I too clerked for a conservative federal judge (in this case, one who also has some libertarian leanings) who sometimes has liberal clerks, including one the year I clerked. There is definitely value to having at least one clerk in the chambers who holds significantly different views from those of the judge. Such a person is more likely to catch certain types of errors than more ideologically aligned staff would be. Judges would do well to engage in more such hiring. Supreme Court justices and prominent circuit court "feeder" judges should try to lead by example on this front.

When it comes to law schools, perhaps the single most important thing they can do to improve cross-ideological dialogue is curb ideological discrimination in faculty hiring. There is extensive evidence of hiring discrimination against conservative and libertarian legal academics. As a result, many top institutions have very few, if any, faculty who aren't on the political left. This is particularly true of public law fields, and others that are ideologically contentious. For obvious reasons, faculty play a major role in setting the terms of intellectual debate in any educational institution. Greater ideological diversity on the faculty would improve the quality of discussion at law schools, and increase the range of ideas that get meaningful consideration.

This is not a call for affirmative action for conservative or libertarian academics, which is a terrible idea. Simple nondiscrimination is all that is needed to simultaneously increase ideological diversity and improve faculty quality. Like racial and ethnic discrimination, ideological discrimination predictably reduces quality, as less-qualified candidates with the preferred views often get hired in preference to better-qualified dissenters.

I also do not claim that, absent discrimination, we would have law school faculties that "look like America" when it comes to the distribution of ideologies. Far from it, most likely. For a variety of reasons, left-liberals would still be overrepresented relative to their percentage of the general population.  But the proportion of conservatives and libertarians would likely be significantly higher than is currently the case.

Eric's list and my added suggestions are far from an exhaustive catalogue of all that elite legal institutions can do to improve dialogue and curb the harmful effects of polarization. Hopefully, we can stimulate a broader discussion on this issue, including additional suggestions by others.