Do Skeptics Make Better Lawyers?

This will be my last post as a guest blogger.  Many thanks to Mark and Marc for allowing me this opportunity to share some thoughts and to the many readers who contributed comments, e-mailed me offline, or just read.  I’m now back to my day job saving monopolists not from their sins but from treble damage judgments.

Since I haven’t been able to stir up any controversy by asking how Jesus would rule on same-sex marriage or why evangelicals are underrepresented at elite law schools, I thought I might go out with a bang by asking whether skeptics—atheists, agnostics, and others skeptical about religious devotion and belief—generally make better lawyers than do people of faith.  And, in case the reader assumes that any post on a law and religion blog must necessary answer this question with a self-righteous snort, please be assured that I mean it quite seriously.

The question has lingered uncomfortably in my mind for a long time.  Back in June of 2005, when I was an untenured faculty member at Cardozo Law School (which is part of Yeshiva University, an Orthodox Jewish institution), my then dean, David Rudenstine, gave a provocative address to group of 200 undergraduate counselors from northeastern universities in which he seemingly questioned whether people of faith could make good law students or lawyers.   David argued:  “Faith challenges the underpinnings of legal education . . . . Faith is a willingness to accept belief in things for which we have no evidence, or which runs counter to evidence we have.  Faith does not tolerate opposing views, does not acknowledge inconvenient facts. Law schools stand in fundamental opposition to this.”

That story is old and was widely discussed at the time, and I don’t mean to use this as an occasion to pick on David Rudenstine, whom I have always known to be fair-minded, ethical, and generous.  It’s just that I’ve often wondered whether David had at least half a point.

In an earlier post. I mentioned an online survey of students at an elite law school that suggested that evangelical Protestants might be underrepresented compared to their national demographic figures.  The same survey (and please see all caveats from last time about its informality) suggested that atheists and agnostics might be very significantly overrepresented compared to their national demographic figures.  According to Pew Forum data, people who identify as atheist or agnostic account for about 4% of all Read more

Religious Literacy Training for Law Students?

When law professors grouse behind closed doors, one of their favorite topics is how law students lack fundamental knowledge and skills they were supposed to get in high school and college.  According to prevailing wisdom, law students don’t know how to write a proper sentence, are ignorant of the most basic historical facts, have no concept of economics, and couldn’t construct a syllogism to save their lives.

Much of this is curmudgeonly hazing of the young by the old that is a regularized and institutionalized rite of one’s transition from youth to age.  “In the good old days, we actually learned things in school.”  Having passed the forty-year mark and hence being an official curmudgeon, I shall indulge in a little whining of my own.  My complaint is the lack of basic religious literacy among law students.

To be fair, this is not just a phenomenon of law students or the young more generally. A 2010 Pew survey found an appalling lack of religious knowledge in the United States, which is by many measures a highly religious country. More than half of Protestants could not identify Martin Luther as a leader of the Protestant Reformation. And about four in 10 Jews didn’t know that Maimonides was Jewish.  Forty-five percent of Roman Catholics didn’t know that, according to church teaching, the bread and wine used in the Eucharist becomes the body and blood of Christ.  (Interestingly, atheists and agnostics scored higher than religious adherents in the survey).

It’s my sense that the mainstream of the American educational system eschews teaching about religion, not necessarily out of hostility, but out of a fear that religion is too hot and divisive a topic to handle in polite company.  The demise of universal Sunday School or Read more

Religious Communities as Disruptive Competitors

Last fall, Barak Richman and I had a friendly exchange on this blog about whether antitrust law should apply to restrictive practices governing rabbinical hiring.  Our debate raised the question of whether antitrust norms are appropriate for regulating competition within religious organizations.  Two recent judicial decisions, one involving Benedictine monks in Louisiana and the other involving a Hutterite colony in Montana, raise questions about commercial competition between religious and secular organizations.

The Benedictine monks case arose out of  Hurricane Katrina, which destroyed part of the St. Joseph’s Abbey’s pine timberlands.  The abbey traditionally harvested pines to support itself.  In need of an alternative source of income, the monks decided to get into the casket business, hand-making two models of “blessed” pine caskets in their workshop.  Before they had sold a single casket, the monks received a cease and desist order from the Read more

A Few Comments on Evangelicals and the Legal Elite

I wanted to respond to some of the comments to my post on why evangelicals are underrepresented in the legal elite and thought it might be easier to do it in a separate post.

Several people have attributed evangelical underrepresentation to admissions bias.  That may be part of it, but I doubt that’s a huge factor at least in the last decade or so.  The reason is that law school admissions officers are under HUGE, HUGE pressure to maximize two things:  GPA and LSAT score, which feed into the all-important U.S. News and World Report Rankings.  Yes, other factors are also taken into account, but it’s hard for me to see admissions offices routinely turning down applicants with 3.98 GPAs and 179 LSAT scores just because the undergraduate school happened to be Wheaton, Calvin, Houghton, Taylor, or Westmont.

The suggestion of trying to study this empirically is a great one.  If anyone out there with an interest in these questions is (1) hugely wealthy and/or (2) a skilled social science researcher, there are number of very interesting empirical projects that one could undertake to put some meat on these intuitions.  Drop me a line!

Finally, to the comments that anti-Christian hostility drives evangelicals away, a few observations/questions.  My very preliminary survey data on one elite law school suggested that Catholics were largely holding their national market share (around 20%) whereas evangelicals were not.  Is the elite law school hostility anti-evangelical but not anti-Catholic?  Are the Catholics who go to elite law schools disproportionately from the liberal wing of Catholicism and therefore don’t care about the hostility to traditional Christianity?  In short, why are Catholics but not evangelicals going to these hostile law schools?

Does It Matter that Evangelicals Are Underrepresented Among the Legal Elite?

This is the third and last post in my mini-series on evangelical underrepresentation among the legal elite.  My first post presented the claim that evangelicals are underrepresented and the second asked why this might be.  To conclude, I want to ask whether it even matters and, if so, in what ways.  I’ll limit myself to three somewhat random observations.

First, evangelicals don’t seem to care too much about their underrepresentation in the legal elite.  Although there have been a few murmurings about the lack of an evangelical on the Supreme Court, evangelicals seem to be much more interested in judicial appointments that will vote for outcomes favored by evangelicals than on the religious identity of the appointees. Thus, for example, after the Supreme Court nomination of evangelical Harriet Miers fell apart (and to repeat a point from yesterday’s post, observe that Miers, an SMU Law grad, lacked “elite” credentials), there seemed to be no great reaction from evangelicals when John Roberts, a Catholic (who undoubtedly had elite credentials), was picked instead.  The choice of Sam Alito, a Catholic, over one of the (very few) plausible evangelicals (like Mike McConnell) barely registered.

That evangelicals by and large feel “represented” by conservative Catholics in the upper echelons of the legal system is interesting in many ways.  One interpretation is that evangelicals accept that viewpoint rather than identity is what matters to representation—a claim that has all sorts of implications for other kinds of “diversity” questions (i.e, do liberal whites adequately represent the interests of liberal African-Americans?).

Another implication—and I’ll go ahead and say it although I know I’ll get pushback (perhaps even assassination)—is that evangelicals care about identity, but increasingly understand evangelical and conservative Catholic identity as converging.  Is it possible that, in the post-Vatican II world, evangelicals and Catholics are beginning to see themselves less as mere political allies and more as sharing a common identity in the loyal and traditionalist wing of Christendom?  This is clearly happening at least at the margins (witness the growth of evangelical Catholicism and liturgical revivals within Protestant evangelicalism, for example).

A second point:  Does evangelical underrepresentation in elite legal jobs matter to the way law is performed?  In his wonderful book Constitutional Faith, Sandy Levinson draws parallels between the competing Catholic and Protestant traditions on textualism, Read more

Why Are Evangelicals Underrepresented Among the Legal Elite?

In a recent post, I asserted that evangelical Protestants are dramatically underrepresented compared to their national demographic figures in the American legal elite.  In this post, I ask why that is the case.  Let me make clear at the outset that I want to avoid causal reductionism, particularly of the kind that leads to easy imputations of blame.  The causes of this phenomenon are surely complex.

Let me begin by offering a thesis:  An important contributing factor to evangelical underrepresentation in the legal elite is evangelical underrepresentation in student enrollments in elite law schools.  Since the American legal elite is overwhelming staffed with graduates of elite law schools, there is at least a strong association between evangelical underrepresentation in student enrollments and the upper echelons of politically important legal jobs.  Since law school pedigrees are very important to securing elite jobs, then it is likely that evangelical underrepresentation in elite law schools provides a significant explanation for evangelical underrepresentation in the legal elite.

In my last post, I asserted (based on admittedly casual evidence) that evangelicals seem to be dramatically underrepresented (again compared to their national demographic percentage of 26%) in elite law student enrollments.  I can’t improve on that assertion for now, but I can provide some evidence on the importance of an elite law school pedigree for securing elite legal jobs.

A few snapshots:  Since 1970, the law school pedigrees of the thirteen Justices appointed to the Supreme Court are:  seven from Harvard, three from Yale, two from Stanford, one each from Columbia, Northwestern, and Washington & Lee.  Attorney General appointments since 1970:  Harvard (5), Chicago (2), Yale (1), Columbia (1), Berkeley (1), George Washington (1), Pittsburgh (1), Maryland (1), Ohio State (1), and Mercer (1).  Solicitor General appointments since 1970:  Harvard (3), Yale (2), Columbia (2), Chicago (2), Berkeley (1), Virginia (1), Duke (1), George Washington (1).  Among the current active or senior status judges on the D.C. Circuit, which is the top feeder circuit to the Supreme Court (with four current Justices having come from the D.C. Circuit), the figures are:  Harvard (4), Chicago (2), North Carolina (2), Yale (1), Virginia (1), Penn (1), Michigan (1), and UCLA (1).  To put a bow on this, of the 54 elite lawyers included in the foregoing lists, only 10 did not attend a traditional Top 10 law school (and the number falls to 8 if Northwestern and Duke, traditional Top 14 law schools, are included).

To bring things closer to home, consider the JD pedigree of faculty at my current employer, the University of Michigan Law School.  On the tenure or tenure-track faculty, the figures are as follows for faculty with a U.S. JD or LLB:  Yale (16), Harvard (9), Columbia (2), Michigan (2), NYU (2), Berkeley (2), Stanford (1), Virginia (2), Chicago (1), George Washington (1), Wisconsin (1).  These figures are broadly representative of the faculty at top law schools.

Now back to evangelicals and elite legal jobs.  If evangelicals are (and historically have been) underrepresented in student enrollments at the Top 10 law schools, which is the opening of the elite pipeline, it will be no surprise that they are underrepresented in the upper echelons of legal jobs.  So why are evangelicals underrepresented in elite law school student bodies?  Let me offer five possible contributing factors:

  1.  Geography

The elite law schools all draw their student bodies nationally, but there may be overall bias (in the statistical sense) toward students from the Northeast, particularly at the two most important “feeder” schools, Harvard and Yale.  Evangelicals are 26% of the nation, but just Read more

Are Evangelicals Underrepresented Among the Legal Elite?

When Elena Kagan joined the Supreme Court in 2010, there was ample chatter about the fact that there were no longer any Protestant justices on the Court.  With six Catholics and three Jews, the Court stood in stark contrast to the bare majority of the country that affiliates as Protestant.  Supreme Court appointments are few in number and idiosyncratic, but there’s a broader religious demographic phenomenon that’s harder to explain away as random:  the underrepresentation of evangelical Protestants among the American legal elite.

First, some definitions and boundaries.  The gold standard for religious affiliation in the United States is the Pew Forum on Religion & Public Life.  Using their affiliation categories, here are the breakdowns for the largest religious demographic groups in the U.S.:  evangelical Protestant 26%; mainline Protestant 18%; Catholic 24%; historically black church (which would include evangelical and non-evangelical Protestants) 7%; Jewish and Mormon 1.7%; unaffiliated 16%.   By “legal elite,” I refer to something with looser boundaries, but still recognizable.  Roughly, it would include elite federal judges (Supreme Court and the most prestigious federal circuits); top legal jobs in the executive branch (Solicitor General’s office, White House counsel, etc.); law professors at top-ranked law schools; and various talent pools that feed into the upper echelon of legal jobs (i.e., student bodies at elite law schools; Supreme Court clerkships).

My strong intuition is that evangelicals are grossly underrepresented in the legal elite.  To focus again on the (admittedly idiosyncratic) Supreme Court, it’s not just that there are currently no Protestants on the court, it’s that at least since the rise of modern evangelicalism as a political force in 1970s, there has never been an evangelical on the Court.  Even though evangelicals have had great success in politics writ large, including the Presidency, Congress, and governorships, they have been conspicuously absent from the top echelons of the federal judiciary.

It’s a good bet that that this underrepresentation stretches back to the beginning of the elite pipeline that feeds the elite echelons.  While I’m unaware of any good data on the religious affiliation of law students at elite law schools, my own experience suggests that evangelicals fall far short of their national demographic numbers in elite law school enrollment.  Several years ago, David Skeel, Larissa Vaysman, and I conducted an online survey of the religious affiliation of first-year students at a top ten law school (a project we are hoping to continue elsewhere).  The 57% of the students who responded provided the following data.  Evangelical Protestants comprised merely 7%, compared to the national figure of 26%, while mainline Protestants and Catholics largely maintained their national shares (16% for mainline Protestant compared to 18% nationally, 20% for Catholics compared to 24% nationally).  Caveat:  this was just one survey and there are all sorts of statistical problems with extrapolating from voluntary online surveys, so take this for what it’s worth.  Still, this snapshot resonated with my intuitions about law school enrollments.  And it would be very surprising if evangelical Protestants amounted to even 5% of the law professors at the top law schools.

Let me be clear that I’m not starting out to tell a bias or victimization story.  The enormous disparity between national demographics and the legal elite (if my intuitions and fuzzy data points are right) could have many different and complicated explanations.  Nor am I necessarily taking a position on the normative implications of evangelical underrepresentation.  For purposes of this post, I just want to make the empirical point, such as it is.  In future posts I will offer some observations on possible explanatory stories and the normative dimensions, if any.

Gay Wedding Cakes and Liberalism

Over the past several years, there have been a number of reported incidents in the U.S. where a bakery has refused to make a wedding cake for a same-sex wedding. In the latest case, a bakery in Gresham, Oregon refused to bake a cake for a wedding between two women, citing religious objections.  One of the aggrieved fiancées has filed a complaint with the state attorney general’s office, which is now investigating whether the bakery violated an Oregon statute prohibiting discrimination in public accommodations.

This incident illustrates a wider phenomenon—unwillingness to pursue liberal values when it comes to the politics of sexual orientation.  By liberalism, I mean the strain of European political philosophy that arose in the eighteenth and nineteenth centuries partly as a reaction to the devastating religious wars of the sixteenth and seventeenth century, most particularly the Thirty Years’ War that killed eight million people in central Europe.  Liberals like John Locke, Adam Smith, David Hume, and John Stuart Mill stressed individual rights, limited government, and freedoms of speech, press, religion, contract, and property as antidotes to such bloodshed.  They aimed to allow people with fundamentally different world views to contribute jointly to the projects of government, order, and civil society with minimum friction.  Liberalism is the philosophy at the heart of the enduring American constitutional order.

Alas, liberalism is losing out in the culture wars.  The gay wedding cakes battles are representative of a wider disease that infects people in both camps—invoking the power of government to endorse and enforce one’s world view on matters of sexuality and identity.  Rather than just saying, “I’ll take my business elsewhere,” the impulse is to call the attorney general’s office in support of one’s position, as though law and politics were the appropriate fora for deciding the morality of sexual identity and practice.

The predominant forces in both camps are pushing anti-liberal agendas.  In 2004, the Virginia Legislature passed a statute invalidating private contracts between gay people if they replicated the incidences of marriage.  Conservatives continue to resist political settlements on same-sex marriage that would shift marriage decisions from the state to Read more

Marriage Privatization Won’t Be Easy

Several years ago I wrote a “Judeo-Christian” defense of marriage privatization, by which I mean getting the government out of the business of deciding what marriage is and by what terms it should be governed.  As the cultural wars over same-sex marriage intensify, that idea has gained wide popularity across the political spectrum.  For example, in their popular book Nudge, Richard Thaler and Cass Sunstein devote an entire chapter to advocating marriage privatization.

Many advocates of marriage privatization seem to think that disentangling the state from marriage would be easy.  They argue that the government should just stop issuing marriage licenses.  Marriage would then become a private ceremonial and contractual matter.  The state would enforce marriage contracts just like other contracts.

Although I remain an advocate of marriage privatization, disentanglement would be far from that easy.  The state is thoroughly intertwined with marriage; the Gordian knot cannot be neatly severed.  I’m currently working on article entitled How to Privatize Marriage that tries to work through these complex issues.  My bottom line is that privatizing marriage does not mean that the state would get out of regulating and recognizing intimate unions altogether, but that it would try to create a wider space for regulation and recognition by individuals and social and religious groups.

I’m still working through these issues and won’t try to offer a comprehensive solution yet.  For now, I’d  like to raise three difficulties with marriage privatization that need to be addressed as part of any privatization proposal.  They correspond to functions currently served by state marriage regulation and recognition.

First, the state uses marriage as a marker for the dispensation of state benefits and the extraction of obligations owed to the state by individuals.  This is most obvious in the taxation context, but occurs across a tremendous range of state activities. (I’m using “state” in its broad sense to include all governments).   For example, selective service (i.e., Read more

How Would Jesus Rule on Same-Sex Marriage?

As the U.S. Supreme Court prepares to rule on same-sex marriage, Christians on both sides of the issue continue to invoke Jesus in support of their position.  Or, more precisely, they invoke a vision of ethics and morality (i.e., inclusivity vs. traditional moral values) that they associate with Christian teaching.  But how would Jesus actually have responded if asked “how should the Supreme Court rule on same-sex marriage?”

That’s anachronistic, of course, but it’s the kind of question that “teachers of the law” routinely flung at Jesus, usually with the intention of entrapping or discrediting him.  The legal elite of Jesus’ day peppered him with hot button legal and ethical questions like “should we pay taxes to Caesar” and “to whom do I owe neighborly duties?”  Often, these questions involved marriage and sexuality:  May a man divorce a woman for any and every reason?  How should a woman caught in adultery be punished?  If a woman marries seven different husbands in succession and then dies herself, which one is she married to in Heaven?  It’s not hard to imagine CNN legal analyst Jeff Toobin cornering Jesus and asking him, “Hey Jesus, how about same-sex marriage?”

It would be presumptuous of me to say how Jesus would answer that question, so I won’t.  But I will offer three observations from things Jesus actually said in response to similar questions.

First, Jesus would likely have faulted both sides of the debate for an excessively materialist perspective.  On one side, we hear that marriage is about procreation and child rearing.  On the other, that it’s about love and companionship.  But Jesus did not understand marriage primarily in terms of its temporal or material effects.  For Jesus, marriage was a spiritual representation of divine relationships.  According to Jesus, God created man and woman—male and female—in the image of God, mirroring the unity and diversity within the Godhead.  Jesus and later apostolic writers referred to Jesus as a bridegroom and the Church as his bride.  Jesus explained that in Heaven people would not be married to one another, since they would be in perfect union with God.  Thus, the ultimate good of marriage was not that it served immediate material needs but that it celebrated the eternal nature of God.

This understanding of marriage has precious little purchase in the contemporary, hyper-materialist world.  Even those who recognize marriage’s “spiritual” component usually mean that psychosomatically—marriage feeds long-term emotional and pyschological needs.  We’ve lost any sense of human institutions as good because of their correspondence to divinity.  Across the ideological spectrum, we’ve given in to Richard Posner’s wish of “unmasking and challenging the Platonic, traditionalist, and theological vestiges in Enlightenment thinking.”  It’s safe to say that Jesus would have had a different take.

Second, and in some tension with my first observation, Jesus might have responded to a question about same-sex marriage by distinguishing between the spiritual ideal and pragmatic legal rules.  That is what Jesus did on divorce.  When asked whether a man should be allowed to divorce a woman for any and every reason, Jesus responded that Mosaic law allowed for divorce because of the hardness of people’s hearts, but that things weren’t that way from the beginning.  Jesus was not advocating a change in the law, but a change in people’s hearts.

Christian thinkers have long debated the distinction between legal and spiritual marital norms.  When Britain was liberalizing its divorce laws in the 1940s, my two favorite Christian writers, J.R.R. Tolkien and C.S. Lewis, took different views on whether Christians should advocate that secular legal institutions mirror the spiritual ideal.  Tolkien opposed the divorce reforms on the grounds that the spiritual should inform the legal.  Lewis argued for a pragmatic differentiation between the spiritual and the legal.  In my view, Lewis was closer to the position staked by Jesus.

Finally, chances are that Jesus’ answer would go to issues far beyond the narrow question presented.  This was almost invariably Jesus’ pattern when confronted with hot-button legal issues. He always found the question itself less important than the darkness it exposed.  Thus, he turned the question about paying taxes to Caesar into condemnation of his questioners’ failure to honor God, the adultery penalty question into an indictment of his interlocutors’ self-righteousness, and the divorce question into an exposé of spiritual hardness.  I shiver to think of how he might turn the same-sex marriage question back on us.  All of us.