A Partial Answer to Michael Moreland’s Question

Mike Moreland recently asked “Why Is There So Little (Relatively) Good Scholarly Work on Abortion?”  Even with his acknowledgement that there are some powerful works on the subject (most from the 1970s) this is a question that is well worth asking.

I can’t really speak to the relative dearth of quality scholarship on the pro-choice side (though I agree with that assessment, even as applied to some of the pro-choice authors Mike cites) but I can offer a few thoughts on the relative lack of quality works on the pro-life side.

I would say that the relative lack of quality in pro-life legal scholarship is due to the relatively small amount of pro-life legal scholarship overall, and that this in turn is due to the enormous disincentives faced by those potential pro-life scholars seeking to become law professors as well as those academics seeking tenure, promotion, and advancement.

When I was first thinking about a career as a law professor, I spoke with my teacher and mentor Mary Ann Glendon.  She gave me a lot of helpful advice, e.g. that I should be open to teaching in different parts of the country, that I should identify the specific courses I would like to teach and think about how I would teach them, etc.  She also said that no matter how enthusiastic I was about teaching, prospective schools would judge my candidacy on how productive they thought I would be as a scholar so that I should work hard to publish some law articles before entering the job market.  Here she warned me “Don’t write about abortion.  Your goal is to get hired and most faculties will not hire someone who is pro-life.  Write about something that interests you but is not especially controversial.  Indeed, I would advise you not to write about abortion until after you have tenure and are at a school where you could see yourself spending the rest of your career.”

Because I was acquainted with Mary Ann’s own writings on the subject, and since I had written my third-year paper on abortion at Harvard under her direction, I was somewhat puzzled by this advice.  But she assured me that the bias in the academy was enormous and a real impediment to entry into the profession.

I took her advice to heart and succeeded in obtaining a teaching position.  Moreover, as she suggested, I did not begin to write on the subject until after I received tenure at a school where I felt comfortable, knowing even then that it would likely foreclose some career opportunities that might otherwise be open in the future.  I have always been thankful for Mary Ann’s guidance, and I have passed on this same advice to young lawyers who have sought my counsel as they contemplate a career in law teaching.

As a faculty hiring committee member and chairperson I have reviewed literally thousands CVs and AALS forms from prospective candidates.  As I think other MOJ members will confirm, it is quite common to see candidates with publications addressing abortion or some related topic from the perspective of “reproductive freedom.”

From this, it is apparent that those on the pro-choice side aren’t receiving the same advice that I was given.   And why would they?!  The number of schools where scholarship in favor of the abortion license would count as a negative are very few indeed – perhaps a handful.  And it is, unfortunately, not a problem at the vast majority of law schools that operate under Catholic auspices – schools that downplay (with some honesty) their Catholic identity as a meaningful presence in the intellectual life of the school even as they champion academic freedom and openness to diverse points of view.

With few exceptions, the academic culture at secular schools manifests either a well-trained indifference or a deep-seated contempt for the pro-life message.  (Of course this might otherwise be described as exhibiting a latent fear of the pro-life point-of-view and a kind of intellectual sloth bred by keeping uniform company with the advocates of “choice”).  The last two major conferences on abortion, at Yale in October 2008 (see here) and at UCLA in January 2013, just a few weeks ago (see here) are indicative of this phenomenon.  Of all the individuals invited to speak at these events, the number of scholars invited to speak who could plausibly be described as “pro-life” is exactly zero. 

A quick review of the law review article databases on SSRN and Westlaw using “abortion” as the search term yields a large volume of articles (1025 articles on Westlaw and 1069 on SSRN).  Now, I haven’t read every one of these articles.  But, from a brief survey of the titles, abstracts and author names, I would be extremely surprised to learn that anything other than a relatively small percentage of these articles reflect a pro-life perspective, and I would be even more surprised to learn that anything beyond a tiny fraction of these articles are published in top ranked journals.  Even the examples that Mike Moreland cites demonstrate this point.  While Reva Siegel and Jesse Hill publish in the Yale Law Journal, the Stanford Law Review, and the Texas Law Review, Mark Rienzi and Helen Alvare do not.

So if your ambition is to be invited to write on the topic from a pro-life prospective, chances are you won’t be invited to speak at conferences at elite schools like Yale and UCLA, and chances are you won’t be published in the top journals at Stanford and Texas.

Good legal scholarship about abortion, like good academic literature in any area, needs to be encouraged and cultivated.  That there are only a few really good articles in the fields of bankruptcy, civil procedure, contracts, tax, or property each year means that there are several hundred more that are not especially good or are only passable and workmanlike.  But professors continue to write in these fields not only because that is where their interest lies, but because they are supported in this by their colleagues and home institutions.

At the vast majority of law schools, this kind of support simply does not exist for the intrepid young teacher who dares to publish an article on abortion from a pro-life perspective.  In all likelihood that young law professor will keep his or her pro-life cards close to the vest, and will instead devote his or her scholarly energies to some non-neuralgic topic in his or her field that will be published and help satisfy the requirements for tenure.  After tenure, there is promotion, and the possibility of moving to a more desirable school, all of which work as a disincentive to writing on abortion with pro-life sympathies.

So is it really a surprise to observe that this faculty member, whose heart was with the pro-life cause when he or she became a professor, never ventures into the scholarly debate surrounding abortion in his or her written work?  And without the maturation of thought and the honing of one’s writing in the area by a larger pool of scholars, is it really surprising to conclude that there is relatively little good legal scholarship on abortion?