Going Back to School: Research Into Academic Politics and the Politics of Academics

Paul Baumgardner is a PhD Candidate in the Department of Politics and the Humanities Council at Princeton University. He is a current doctoral fellow in the American Bar Foundation/AccesLex Doctoral Fellowship Program in Legal and Higher Education. He has published work in Presidential Studies Quarterly, Law & Social Inquiry, and Journal of Church and State, and was part of the authorial collective of Keywords; For Further Consideration and Particularly Relevant to Academic Life, &c.. His article “Originalism and the Academy in Exile” appears in the Law and History Review symposium on originalism and legal history (volume 37.3).

My recent writings on constitutional originalism, which include my Law and History Review article “Originalism and the Academy in Exile,” stem from a broader research interest in law professors and the role that academics play in the ecology of the legal profession. Within my discipline—political science—law professors represent a largely untracked cast of legal actors. This inattention has always struck me as a strange omission within political science research, for law professors are a unique bunch—a professional class with political ideas, approaches, responsibilities, and identities quite distinct from those of ordinary lawyers.[1]

At first sight, political research into these figures may appear to be a bit of an oddity. For one thing, a common critique of American law professors is that they are set apart from genuine political involvement. To make matters worse, the legal scholars who see themselves as politically influential too often perceive themselves as bigger, more important, more impressive, and having a larger effect on the nation’s legal order than fits reality. Former U.S. Supreme Court Justice Antonin Scalia chided the disconnected activities of legal thinkers, which he saw as comprising arguments and aims that might be “the darling of the professoriate” but have no credibility or practical nexus.[2] U.S. Court of Appeals Judge Harry T. Edwards echoed this attack on legal academics, declaring that American law schools were being overrun by “impractical scholars” and “ivory tower dilettantes” who presented a real danger to the legal order because of how woefully disconnected they were from it, while feigning great attachment and influence over it.[3]

Recent Works

Unfortunately, recent works covering intellectual history and American law have shed little light on the political agency of law professors. For example, take Thomas Sowell’s recent, lengthy account of legal intellectuals in Intellectuals and Society. Sowell undoubtedly believes that intellectuals have been (and can continue to be) remarkably consequential in American life, yet he never articulates the relationship between legal intellectuals and American law.[4] In fact, Sowell is unclear about what legal intellectuals actually do. Just complain? Armchair theorize? On one hand, he remarks on “the wide range of ways that intellectuals have devised for not analyzing problems and not confronting issues.”[5] However, Sowell also laments that some legal scholars, such as those who worked within the legal realist movement during the opening decades of the twentieth century, have been willing and able to effectively communicate their ideas in the law schools and then, through students and peers, into the legal profession more broadly.[6] This blurred vision of the political agency of legal scholars is further complicated by Sowell’s compulsion to debunk liberal intellectuals’ supposed misunderstanding and misuse of the modern judiciary. By the end of Sowell’s account of legal scholars in Intellectuals and Society, scorn for legal liberalism is a constant, supplemented by a shrugging concession that some law professors are politically engaged, while others are not.

A more sophisticated, but equally ideological, study of law professors can be found in Stephen B. Presser’s 2017 book, Law Professors: Three Centuries of Shaping American Law.[7] Presser intends this to be the first book of its kind, a treatment of law professors and their attempts to generate substantial impacts on American law and the legal profession. This is a worthwhile project, Presser assures the reader, for “a particular group of persons—American law professors—have had a profound effect on American law and American life.”[8] Furnishing a law professor’s biography for each period of American history, Presser attempts to demonstrate how a representative law professor or grouping of law professors shaped each era of American law.

Although there is much to applaud in Law Professors, including its persistent monitoring of the ideas and intellectual production of diverse legal scholars throughout the centuries, Presser never actually delineates the forms of political involvement or influence amongst law professors. Instead, the reader is introduced to a well-pedigreed scholar and told a few of his/her ideas. The reader is expected to connect the dots and intuit any larger legal objectives or political impacts. But did each of these scholars consider what they were doing to be political work directed at significantly reforming the law? If so, how? Presser does not help to resolve these issues of professorial aims, actions, and influences.

The Relationship Between Academics, Movements, and the Law

The difficulties involved in diagnosing the political agency of a law professor are compounded by the collective identities and joint work of professors. One of the first literatures that I approached when I began researching law professors was the social science scholarship on the role of social movements within American legal development. Unfortunately, although valuable academic work has been conducted on the composition of movements within and across different professions, there is an astounding amount of ambiguity when scholars attempt to conceptualize collectivities amongst their own kind (i.e. scholars).[9] The list of loose talk that covers academic, scholarly, or intellectual groupings knows no bounds, especially within the legal field. Do legal thinkers constitute political movements? Academic movements? Jurisprudential movements? Schools of thought? Approaches? Trends in legal scholarship?[10] When tags are imposed and collectivities described, the reasoning behind such typologies and analyses is scattered at best.[11] Put simply, the inability to consistently classify and compare collectivities is on full display when it comes to legal scholars in the United States.

This problem has proven particularly thorny in my current research, which explores American law professors and law schools of the 1980s. Political science investigations into the political developments and legal reforms of the Reagan years regularly ignore the roles played by law professors. Some of the more recent scholarship has referenced law schools and legal academics, but has treated professors less as discrete political agents and more as ambiguous pawns in a broader, cultural chess match. In these studies, law professors represent little more than the dutiful proxies for more powerful legal forces. Networks, intellectual movements, legal movements, and larger umbrella movements clash over the future of American legal development. But these amorphous collectivities of the 1980s go under-theorized, as does the place of legal academics within these different groupings.

In “Originalism and the Academy in Exile,” I investigate the changing fortunes of constitutional originalism during the 1980s in order to pinpoint the unique place of law professors within the ecology of legal professionals during the decade. My research shows how U. S. Attorney General Edwin Meese III constructed a beachhead for constitutional originalism within the Department of Justice during the 1980s, which eventually created a demand for academics to research and teach this mode of interpretation within law schools. Unlike Sowell’s and Presser’s accounts of legal scholars, my article clearly demonstrates the relevance of law professors and the legal academy to American constitutional development. Although originalism had been ridiculed for years, constitutional originalists during the 1980s organized outside of the legal academy in a manner that effectively seized territory within it. Both the work of originalists in exile and then originalist professors had a profound effect on the rise of the conservative legal movement, the legal reasoning and historical argumentation of contemporary lawyers, and the national discourse on constitutional law.


It is no wonder why there have been so few sustained treatments of law professors as influential actors in American law and politics, or why the meager scholarship that does exist has been crude, disjointed, and unconvincing. The real world significance of law professors is difficult to map. Compounding this problem is the possibility that legal scholars disagree about the scope of their political influence. Some assert that “[l]aw professors cannot cure society’s ills, no matter how firmly they believe they know just what to do.”[12] Other law professors believe that the profession can have remarkable legal influence, if professors only channel their energies in specific ways and towards certain venues.[13]

Despite these challenges and complexities, political scientists do need to grapple with academic politics and the politics of academics. Law professors are essential objects of political research, for they represent an important class of actors within American politics. Legal academics can shape the hearts and minds of both lawyers and laity. In fact, there are powerful examples in American history of legal scholars moving outside of the classroom to exert strong influence over laws and lawmakers.

Although ‘going back to school’ requires a good deal of labor-intensive, qualitative research, such an undertaking will lead to a more complete understanding of the academy, the academic profession, and the changing ecology of legal professionals. This research will uncover the unique forms of political action amongst professors and will provide insight into the roles of legal academics within different types of political collectivities operating both inside and outside of the ivory tower.

[1] See James Barr Ames, “The Vocation of the Law Professor,” The American Law Register 48 (1900); Richard H. Fallon, Jr., “Scholars’ Briefs And The Vocation Of A Law Professor,” Journal of Legal Analysis 4 (2012); Richard A. Posner, Public Intellectuals: A Study of Decline (Cambridge, MA & London: Harvard University Press, 2009); Arthur Austin, “The Law Academy and the Public Intellectual,” Roger Williams University Law Review 8 (2003).

[2] Antonin Scalia, Oral argument in McDonald v. Chicago, reprinted in Michael C. Dorf, “Justice Scalia Suggests that the Legal Academy is Out of Touch: Is He Right?” FindLaw, March 8, 2010. http://writ.news.findlaw.com/dorf/20100308.html.

[3] Harry T. Edwards, “The Growing Disjunction Between Legal Education and the Legal Profession,” Michigan Law Review 91 (1992): 35-6.

[4] Thomas Sowell, Intellectuals and Society (New York: Basic Books, 2009).

[5] Ibid., 498.

[6] See, e.g., Ibid., 246-252, 494-5, 523-4.

[7] Stephen B. Presser, Law Professors: Three Centuries of Shaping American Law (St. Paul, MN: West Academic, 2017).

[8] Ibid., 4-6.

[9] See, e.g., Rue Bucher, “Pathology: A Study of Social Movements within a Profession,” Social Problems 10 (1962).

[10] See, e.g., Gary Minda, “The Jurisprudential Movements of the 1980s,” Ohio State Law Journal 50 (1989): 599-603, 632; Samuel J. Levine, “RLT: A Preliminary Examination Of Religious Legal Theory As A Movement,” St. John’s Law Review 85 (2011); Samuel J. Levine, “Richard Posner Meets Reb Chaim of Brisk: A Comparative Study in the Founding of Intellectual Legal Movements,” San Diego International Law Journal 8 (2006); Robin West and Danielle Citron, “On Legal Scholarship,” Current Issues in Legal Education, The Association of American Law Schools, https://www.aals.org/current-issues-in-legal-education/legal-scholarship/; Simon Zschirnt, Legal Intellectual Movements in Political Time: Reconstructive Leadership and Transformations of Legal Thought and Discourse (El Paso, TX: LFB Scholarly Publishing, 2015).

[11] See Stephen M. Feldman, American Legal Thought from Premodernism to Postmodernism: An Intellectual Voyage (New York & Oxford: Oxford University Press, 2000); Richard A. Posner, “The Decline Of Law As An Autonomous Discipline: 1962-1987,” Harvard Law Review 100 (1987); Pamela Bridgewater, Kylar Broadus, Emma Coleman Jordan, and Wendy Webster Williams, “Panel One: Movements in the Legal Academy,” Georgetown Journal of Gender and the Law 5 (2004).

[12] Mary Ann Glendon, A Nation Under Lawyers: How the Crisis in the Legal Profession Is Transforming American Society (Cambridge, MA: Harvard University Press, 1994): 251.

[13] See, e.g., Richard A. Posner, Divergent Paths: The Academy and the Judiciary (Cambridge, MA: Harvard University Press, 2016); Pierre Schlag, “Clerks in the Maze,” Michigan Law Review 91 (1993).