Monday, January 22, 2007

Echo-Chamber Scholarship

A recent post on StephenBainbridge.com, entitled "Does What 'Elite Professors' Think Matter?," begins with the premise that: "University faculties tend to be highly self-selected and appointments tend to be dominated by network effects that produce a remarkable homogeneity of belief .... Outside their areas of expertise (and sometimes even inside it), their beliefs tend to be colored by their ideology and by the need to conform to the expectations of their colleagues." The post then goes on to endorse an assertion that, as a result, legal scholarship tends to be disproportionately liberal.

The premise is sound; the conclusion is not.

I've run into this problem twice recently in my own scholarship. Over the past two decades, a group of about a dozen very smart, very productive "elite professors" has engaged in a debate about the relative merits of income vs. consumption taxes. A recent article by a member of this group -- a scholar whose work I regard very highly -- begins: "Recently, a consensus seems to have emerged in favor of a consumption, or cash flow, tax."

A consensus? Really? Among whom? Members of Congress? The electorate? Members of the tax academy? No, to all of the above. The author in question was referring rather to an emerging consensus within the small group reading each other's articles on the issue. That "consensus," in turn, strongly influenced the recent recommendations of President Bush's Tax Reform Panel. Those recommendations, unfortunately, turned out to be completely out of sync with the electorate's views and were pronounced DOA.

In tax, the problem goes even deeper. For the past half century, opinion-shapers in the tax academy have viewed "ability to pay" as irrelevant to tax policy analysis. Congress, by contrast, views it as the starting place for almost all such analysis. See my grumpings on this issue at Seto & Buhai,
Tax and Disability: Ability to Pay and the Taxation of Difference, 154 U. Pa. L. Rev. 1053 (2006). In consequence, a colorable argument can be made that elite tax scholarship has actually contributed to the mess that is now the Internal Revenue Code.

My point here is not that they're wrong and I'm right. My point is rather that echo-chamber scholarship does not necessarily lead to liberal conclusions, even if all or most of the participants are liberal. An income tax based on ability to pay is probably as liberal a tax policy conclusion as one might imagine. Both the income tax and ability to pay, however, are currently out of favor among the tax-scholarly in-crowd, almost all of whom are Democratic liberals in their civilian lives.

A similar effect can be observed in a very different context: theories of constitutional interpretation. In his recent extremely helpful posting on Originalism, Larry Solum writes: "These days one is more likely to hear pronouncements that 'we are all originalists, now.'" With respect, Larry, really? Among whom? Judges? Constitutional law professors? Or just constitutional law professors who write to each other about originalism? Again, I find myself wondering how to break into this particular echo chamber, see Seto, Originalism vs. Precedent: An Evolutionary Perspective, 38 Loyola L.A. L. Rev. 2001 (2005). Thus far, no success.

My point again is not that originalism is wrong or, indeed, that I have anything interesting to say about it. But clearly, originalism is not typically associated with liberal modes of thought. The conclusion that echo-chamber effects in a legal academy dominated by Democrats inevitably lead to a liberal conventional wisdom is simply not supported by the facts.

3 Comments:

Blogger Jeff Harrison said...

Really interesting post. Thanks. I am not sure this goes to the point you are making but there seem to be complete areas within legal scholarship that are monopolized by "liberals" (sorry, can't really think of today's liberal as being liberal) Within these areas -- race, gender, environmental law, disability, and maybe some others -- the debate all takes place within a "liberalism."

1/22/2007 6:03 PM  
Anonymous Steve Horowitz said...

To be fair, the post isn't really about liberal views in scholarship. It's about listening to elites primarily outside of their area of expertise. Insofar as they are outside of their expertise, they are the very same liberal "civilians" to which you refer.

Still, your post is very interesting, especially concerning the liberal originalist echo-chamber.

1/22/2007 6:48 PM  
Blogger andy said...

Great post. I keep seeing posts on blogs about how "everyone is a legal realist." My reaction is the same as yours-- "Since when did 'everyone' refer to a subset of scholars?"

1/23/2007 4:37 PM  

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