DEBATE CLUB 1/23/06
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DO LAW SCHOOLS NEED IDEOLOGICAL DIVERSITY? Peter H. Schuck and Brian Leiter debate. Law professors are supposed to help students learn to think about issues from all sides. While law schools may have recruited more women and minorities in the past generation, they still lack ideological diversity, according to two recent studies. One reports that law professors who donate to political causes donate overwhelmingly to Democrats. The other contends that what's missing are representatives of the new mainstream in America: "Republicans, conservatives, and evangelical or fundamentalist Christians." Do law schools need more diversity? Peter H. Schuck is Simeon E. Baldwin Professor of Law at Yale Law School. Brian Leiter is Joseph D. Jamail Centennial Chair in Law, Professor of Philosophy, and Director of the Law & Philosophy Program at The University of Texas at Austin. |
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Schuck: 1/23/06, 09:19 AM Elite law schools cherish robust debate, iconoclasm, and arguing issues from all sides, right? Wrong. The dirty little (not-so) secret about these faculties—that they care much more about diversifying their skin colors, genders, and surnames than about diversifying their points of view—has finally come to the attention of the general public. What, then, are the political values of law professors, and how closely do those values resemble those of the larger communities that the newly minted lawyers will enter and influence? The answer to these two questions depends on whether you believe the high-minded ideals about diversity emblazoned on the facades of university buildings, celebrated in academic ceremonies, and proclaimed in the briefs that the schools file in affirmative action and academic freedom cases—or whether you believe, instead, the empirical evidence on law faculty diversity that a few social scientists have recently developed. James Lindgren, a lawyer/sociologist at Northwestern University, has noted that elite universities invariably claim that a diversity of viewpoints and cultures are essential to their programs, and actively seek students, faculty, and staff who share this commitment. In the Winter 2005 issue of Yale Law and Policy Review, Lindgren observed that diversity-based affirmative action policies assume "that the groups that have been discriminated against historically are the same groups that are underrepresented in universities and further that these two presumptively coextensive sets of groups are coextensive with the groups that would provide more viewpoint diversity if their numbers were increased in academia." Which groups would add the most viewpoint diversity to law school faculties? Lindgren's answer, for most faculties, is "Republicans, conservatives, and evangelical or fundamentalist Christians—none among the groups that were traditionally locked out by the United States's racist and sexist practices of discrimination." (He also found that Jews, who were subject to hatred and discrimination, are vastly overrepresented in law teaching, by a ratio of 13:1). Which group is most underrepresented among professors at the top 100 law schools that Lindgren examined? White female Republicans. But because individuals in this particular subgroup do not fit the left-of-center academic ideal and stereotype of women, faculties seeking gender diversity do not recruit them. Indeed, Lindgren finds that all of the substantial underrepresentation of white women compared to the full-time working population was among white female Republicans, while white Democratic women were overrepresented on law faculties compared to the demographically comparable pool of lawyers. Universities claim to value viewpoint diversity very highly. I should hope so, for it is precisely the kind of diversity that their students most need in order to sharpen their thinking, nourish their openness to new ideas, and prepare them to live in a pluralistic society. Lindgren shows that the sharpest divisions among people's attitudes on public issues correspond not to gender, but to political party, followed by race. This pattern holds, he finds, not only for political issues but for many legal issues as well, such as abortion rights, gun control, and pornography. "Promoting intellectual diversity," Lindgren concludes, "would often point away from hiring more minorities and toward hiring more Republicans or evangelical Christians. Conversely, promoting further ethnic and gender diversity, particularly in faculty hiring, often would not foster a wider range of intellectual or political views—or more representative ones. Indeed, if most of the women and ethnic minorities who are actually hired on law faculties tend to lean toward the Democratic Party, the faculty overall may become less representative of the diversity of views in the wider public." Actually, he understates his case: Viewpoint diversity will almost always cut against affirmative action hires, which will almost always make the faculty less representative of viewpoint diversity in America. When we turn to the elite law schools, the Democratic political bias is even more pronounced. Consider a study published this year in the Georgetown Law Journal by Northwestern professor John McGinnis and two coauthors. Their subject was federal campaign contributions made by law professors. Surveying the 21 schools top-ranked by U.S. News & World Report in 2002, they identified all contributions of $200 or more in any year between 1992 and 2002. Of the 29 percent who made such contributions, fully 81 percent contributed to Democratic candidates. (These figures turn out to be fairly good proxies for these professors' political affiliations.) The Democratic bias was even stronger at the highest-rated law schools. At Yale, my own institution, 43 percent of the faculty made such contributions, and of those, 81 percent gave only to Democrats; another 12 percent gave mostly to Democrats. At Stanford, 94 percent gave only to Democrats; for the supposedly more conservative Harvard, the figure was 88 percent. Moving down the pecking order, these percentages tend to be somewhat lower but still a preponderance; even the lowest (the University of Virginia) is 50 percent. When the authors compared these figures to the contribution patterns of other Americans with comparable education and income, the elite law professors were, again, markedly more Democratic. This statistical evidence of the overwhelming Democratic bias on the part of law professor contributors is interesting. (I am scratching my head trying to figure out which of my colleagues—there was only one—gave only to Republicans.) And for those who enjoy irony, it is amusing to learn that the faculties that most loudly proclaim their commitment to diversity do not exemplify it in the very area, viewpoint, that is (or should be) most central to their professional mission. But none of this will really surprise anyone who has spent any time in a faculty dining room at an elite school. Nor will it be news to anyone who has managed to plow through recent law review articles, especially on constitutional and public international law topics. (The data indicates that the Democratic bias is particularly great for teachers of these subjects, which lend themselves to politically inflected interpretations.) Ultimately, the important questions are: How does this bias affect legal education, and why is this a problem? These questions, it turns out, are harder to answer than one might expect. First, the studies speak to professors' ideological affiliations, not to what they actually teach in class. It is possible—I hope likely—that faculties are more catholic in their teaching than they are in their political contributions. Perhaps professors are conscious of their bias and believe that presenting diverse ideological perspectives is essential to their teaching effectiveness. If so, the positions that they present in class and represent in their reading lists may be more balanced than those to which they personally subscribe. Perhaps in class they present conservative views that they personally reject, and put those views in the best possible light rather than signaling that the students need not take them too seriously. The studies do not shed light on these possibilities, or on what professors actually teach. Second, even if their teaching is one-sided, we do not know how much these biases influence students. Although McGinnis et al. do not purport to address this question, they speculate (drawing on studies of group decision making, including panels of appellate judges of mixed political affiliation) "that left-liberal ideas are less theoretically and politically powerful than they might otherwise be because they are rarely tested and improved through conservative challenge within the academy itself." Even if this is true, of course, we do not know whether their students can recognize the analytic weaknesses of these untested positions. Finally, law students, who are less impressionable than undergraduates and have more fully formed views, seem to think that they know their professors' political views. If so, perhaps they discount those views accordingly. Even with these qualifications, however, it seems likely that professors' decidedly liberal ideology has a significant influence on what their students think. After all, spending two to four hours a week for over three months listening to an articulate, knowledgeable, skilled rhetorician expound on the law must have some persuasive effect. But again, why is this a problem? Liberal faculty at these schools, like their (rare) conservative colleagues, believe what they teach, and there is no reason to label their liberal teachings as wrong just because conservatives often disagree with them. In a society that properly values viewpoint diversity and protects academic freedom, only positions that are demonstrably beyond the pale can amount to educational malpractice. This "crackpot" standard, of course, is notoriously difficult to define, but very few of the views propounded in law school classrooms would qualify. Nevertheless, a teaching institution that constructs an ideologically one-sided faculty, whether liberal or conservative, seriously abdicates its pedagogical responsibilities. Professors have a sacred duty to their students and to each other to affirm—and also to exemplify—core academic and intellectual values. We should convey to our students an abiding respect, even awe, for the complexity of law in society, and we should exhibit the ideological humility that this complexity implies. Any professors worthy of the title have strong views, of course, but they should also have a keen sense that those views may be wrong, or based on incomplete evidence, or highly reductive. Even if we are utterly convinced of the correctness of our positions, we should teach as if we aren't—as if there are serious counterpositions to be entertained and explored, as if even the truth cannot be fully apprehended until it is challenged by the best arguments that can be marshaled against it. And although scrupulous teachers can sometimes challenge their own deepest convictions in class, most of us need competing points of view—on our own faculties, debated before our own students—to keep us intellectually honest and to enrich learning. It is all well and good for student groups like the Federalist Society to bring heterodox lecturers to campus, but these extracurricular speakers are no substitute for what should go on in class—and seldom does, I fear. What can be done to make professors practice what they preach on diversity? Alas, no easy remedy exists. The tenure system and the lack of mandatory retirement will project existing faculty bias far into the future. Moreover, the elite schools recruit new law teachers mainly from the top ranks of their recent graduates, whose own predominantly left-liberal views are fortified by their professors. And adopting affirmative action for conservative viewpoints would be odious and, for public law schools, almost certainly a First Amendment violation. Some conservative critics note that this bias extends far beyond law schools, and are pushing a nonbinding "academic bill of rights" that, if not complied with, might lead to sanctions. Congress should resist such heavy-handed nostrums. If faculties are to be first-rate, they must continue to select their own colleagues, and academic freedom must be protected even for those who pay mere lip service to viewpoint diversity. In the short run, the only remedy is for professors to rededicate ourselves to engaging forthrightly with contrary views and respecting the real-world complexity that often challenges our firmly held legal theories, while eschewing the temptation to indoctrinate students with our most cherished beliefs. Universities should be the first to insist that debating societies are better than echo chambers when the goal is to find the truth. (This article appeared, in a slightly different format, in the December issue of The American Lawyer.) |
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Leiter: 1/23/06, 11:43 AM I wonder, Peter, whether these studies really give us information relevant to assessing viewpoint diversity in American law schools. Less than one-third of faculty at top law schools contributed to any federal political candidates. Unless there were some reason to think likelihood of contributing was evenly distributed across political preferences—which seems unlikely for all the obvious reasons—these studies tell us nothing about the political preferences of two-thirds of elite law faculty. But it's worse than that. Do these studies distinguish between contributions to liberal Republicans like Lincoln Chafee of Rhode Island and conservative Republicans like Trent Lott of Mississippi? Or between support of a conservative Democrat like Mary Landrieu of Louisiana or a liberal Democrat like Ted Kennedy of Massachussetts? Yet surely these kinds of differences are important to understanding the contours of the political ideology of the minority of law professors that actually make donations to candidates. This latter observation suggests the really fundamental problem with the data: The categories at issue here, "Republican" and "Democrat," are too crude to tell us much of relevance to viewpoint diversity in legal education. So white Republican women are few and far between on law faculties. But what exactly is the "white Republican female" viewpoint on the analysis of causation in tort law, default rules in contract, the empirical foundations of the hearsay exceptions, the scope of the dormant commerce clause, the relevance of behavioral law and economics, or the professional responsibilities of insurance defense lawyers? These are far more typical of the actual topics on which law professors and law students have differing viewpoints, but they do not map on to the crude categories that are the subjects of these studies. Perhaps "Republican" and "Democrat" are supposed to shed light on one's viewpoint about a few hot-button constitutional law issues, like affirmative action and abortion? But what is the white Republican female view on these issues? Sandra Day O'Connor and Phyllis Schlafly are both white Republican females, but, unless I'm mistaken, their viewpoints are very different. Finally, perhaps you can help me with a certain perplexity that these crude studies don't help resolve. As someone reasonably familiar with elite law schools—I studied at Michigan, teach at Texas, have visited at your school, Yale, and have spent good bits of time with colleagues at other top law schools—it has always struck me that law schools are far more intellectually diverse than, say, elite law firms, or the major media, or the U.S. Supreme Court, or the U.S. Senate. At my law school, for example, there are libertarians, free market utopians, Burkean and Bush conservatives, Wall Street Republicans, middle-of-the-road Democrats, New Deal liberals, social democrats, and so on. What other major institution in American society has that kind of diversity of viewpoints? Among top law schools, my impression is that Chicago, Northwestern, Virginia, and Penn may tilt a bit further to the right than Texas, while Yale, Stanford, NYU, Michigan, and Berkeley may tilt a bit further to the left. Probably the least intellectually diverse serious law school in America—George Mason—is solidly on the libertarian/law-and-economics right, a view barely represented at all in the population at large. Taken all together, then, leading American law schools seem far more intellectually diverse than any other elite institution in American society I can think of. Doesn't focus on crude and uninformative categories like "Democrat" and "Republican," and on campaign contributions based on such categories by less than one-third of the law professoriate, obscure all this? |
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Schuck: 1/24/06, 08:01 AM Brian, your point about the incompleteness and indeterminacy of the studies I cited is well taken. And yet. . . . Recall that my essay was explicitly concerned with "elite" law school faculties. I did not define the term, but for present purposes one property of such faculties is that their members increasingly possess advanced degrees in the fields on which legal scholarship and law teaching draw heavily—particularly the social sciences and humanities. A number of studies of professors' attitudes about a variety of social, cultural, pedagogical, and policy issues have found that professors tend to be significantly more liberal than the population in general, and that those in the social sciences and humanities are even more liberal than the professoriate in general. No doubt, this reflects some combination of self-selection, disciplinary conventions, the ideological biases that prevailed in the period (1960s) when today's senior professors joined faculties and then gradually came to dominate them, and other factors. I too would prefer rigorous social science studies, but until they arrive, I feel fairly confident in relying on the ones I cited plus my personal observations and knowledge of the political leanings of elite faculties over a 25-year period. On the Yale faculty, I can count the number of reliable Republican voters on the fingers of one hand. (I am not one of them). On the larger Columbia faculty, which of course I know less well, I can think of very few. On the even larger Harvard faculty, I doubt if there are a dozen. You claim that elite law faculties are "far more intellectually diverse than, say, elite law firms, or the major media, or the Supreme Court, or the U.S. Senate." I am not sure why this is relevant to my point, which was not about intellectual diversity but about political orientation—about attitudes on the appropriate role of courts and other governmental institutions, on the nature of individual rights, and on a host of more specific public issues. Insofar as political orientation is concerned, your claim is plainly wrong with respect to the Supreme Court and the Senate, and probably wrong with respect to the media (I don't know what you consider "major"). I am ignorant about the political views of elite lawyers, but in my experience there is a higher percentage of Democrats among elite New York City and Washington, D.C. lawyers than the percentage of Republicans on elite law faculties. And more to the point, we—unlike these other groups—are teachers. Our job is, among other things, to train students to understand and respect the different ways in which legal actors perceive reality and frame arguments accordingly. For one who believes that elite faculties are not diverse with respect to political orientation and do not seem to value this diversity as much as they value diversities of skin color and (selected) ethnicity, your most interesting claim is that this political one-sidedness, in effect, does not matter. It does not matter, you suggest, because it will not affect what we teach our students with respect to the more technical subjects covered in the law school curriculum. Lacking any evidence on the point, I am prepared to believe that some, or perhaps even many, law professors forcefully present the strongest critiques of their own favored positions. Indeed, I expressly raised this possibility in my essay. If it is in fact true, then much of my concern will be allayed. But you make a quite different point—that the teaching of legal doctrines and concepts is unaffected by the teacher's political commitments—that I find utterly unpersuasive. As a fine legal philosopher like you knows (and writes), law is normative all the way down, and it would be extremely odd if, in teaching deeply normative subjects like the ones you mention, law professors—who in my experience almost always have strong political opinions and the self-confidence to advance them forcefully—did not infuse those views into their teaching and give short shrift to views with which they strongly disagree. Disciplined self-restraint and the willingness to effectively advocate personally distasteful views may suffice to minimize this effect. I am skeptical that many law professors actually manage this, but am always open to evidence. |
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Leiter: 1/24/06, 11:44 AM I'm a little uncertain, Peter, about the import of your shift from talking about "viewpoint diversity" (the focus of your American Lawyer essay) to "political orientation." I was in agreement with your original point that universities should "value viewpoint diversity very highly" since it is "the kind of diversity their students most need in order to sharpen their thinking" and "nourish their openness to new ideas." Since we agreed there, I wanted to emphasize two points of possible disagreement. First, even in terms of "political orientations," law schools represent a more diverse range of viewpoints than found, say, on the U.S. Supreme Court or in the Senate. (I was surprised you disputed that: Who are the libertarians and social democrats on the court and in the Senate? Easterbrook and Posner only made it to the Seventh Circuit [alas!], and Kucinich—about the closest we get to a prominent social democrat on the American political scene—is in the House.) But second, and more importantly, "political orientation" isn't what matters for viewpoint diversity in legal scholarship and legal education, except, perhaps, on a very small number of topics. For the bulk of the legal curriculum, viewpoint diversity means differing views about what you call the "technical" questions—causation in tort law, default rules in contract, the foundations of the hearsay exceptions, and so on—but which I am inclined to describe as the bread and butter of a legal education. As to this kind of viewpoint diversity, which actually matters, the studies you referenced originally are irrelevant. You're still skeptical, observing that "law is normative all the way down, and it would be extremely odd if, in teaching deeply normative subjects like the ones you mention, law professors—who in my experience almost always have strong political opinions...—did not infuse those views into their teaching and give short shrift to views with which they strongly disagree." Now I would like nothing better than to derail this discussion into jurisprudential debate about what it means to say that "law is normative all the way down," but I think our generous host would be displeased with that turn of events. Happily, I think I can address your skepticism without philosophical abstractions. The Critical Legal Studies folks of yesteryear may have thought all law is politics, but I doubt very much that's your view. Certainly there are normative questions that arise in every domain of legal study, but they do not necessarily involve political norms, norms that map onto party affiliations. Figuring out the "best" explanation for a line of cases is a normative matter, but these are norms of interpretation and legal reasoning, not whether you voted for Bush or Kerry. Discussing J.J. Kohler's challenge to the admissibility of DNA evidence, given the failure of jurors to interpret such data correctly, raises normative questions—about the epistemic weight to accord the empirical studies in question, about the goals of trials, and about the gatekeeping functions of judges, but there is no Republican or Democratic view on these matters, just as there is no Republican or Democratic view about causation in tort law, default rules in contract, burden shifting in summary judgment, or demarcating the conceptual boundaries of justification and excuse in criminal law. It would be a shame to let the overtly political, and often lawless, character of some parts of constitutional law obscure the fact that the kinds of normative judgments demanded by most of legal study have little to do with politics. |
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Schuck: 1/25/06, 09:10 AM In using the phrase "political orientation," I intended no "shift from talking about 'viewpoint diversity'" but was using an infelicitous shorthand. I agree with you that they are not necessarily the same. Where we disagree, I think, is about the correlation between political orientation (for present purposes, I'll accept your definition of this as Democrat vs. Republican, although we both know—and your own mention of libertarians and social democrats suggests—that this is far too crude) and viewpoint diversity. I think that a significant correlation exists and, more to the point here, that this often (by no means always) maps onto many of the "technical" or "bread and butter" issues that law students study, particularly in constitutional law and other public law subjects but also in many private law subjects such as my own beloved torts. I discuss one example in the next paragraph, but I can provide many, many more. You evidently disagree with both of these claims, but perhaps we can make some progress anyway. Although I entirely concur with your more capacious understanding of viewpoint diversity (i.e., to include social democrats, libertarians, and other such orientations), I would happily settle—at least for starters—with redressing the startling partisan imbalance on which my essay focuses. As an epistemological matter, you are certainly correct that there is not—or at least should not be—a Democrat or Republican position on these issues. But because I believe that partisan differences do map onto how a significant number of legal issues are analyzed and resolved—for example, conservatives tend to be more supportive of Daubert hearings on disputed evidence than liberals are, probably because conservatives are more suspicious of the so-called "junk science" that in their view is often used to support more extensive environmental regulation—I do think that partisan diversity would be a good and attainable start toward exposing law students to different ways of analyzing issues. I'm prepared to worry about the paucity of social democrats and libertarians down the road, when faculties are large enough to differentiate among more of the sub-species that inhabit the left and right. |
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Leiter: 1/25/06, 11:28 AM Thanks, Peter, for this useful clarification of your position and the contours of our agreement and disagreement. I am glad we agree that the categories most often bandied about in these discussions—namely, "Democrat" and "Republican"—and which figure in the studies that garner the most attention are "too crude," and that the real question is the extent to which political orientation really correlates with views on "technical" and "bread and butter" issues that arise in legal scholarship and legal education. Daubert, though, is an interesting example to invoke. You're, of course, right that a certain kind of superficial public debate frames the issue in terms of "junk science," which is thought by conservatives to be enlisted on behalf of, for example, environmental causes. But it is not my impression that this has been the core of the legal or scholarly debate. Let's remember, to start, that the scathing dissent in Daubert was written by the late Chief Justice, William Rehnquist, a conservative, and he certainly wasn't concerned with making it easier for liberal plaintiffs to justify environmental regulation or win tort suits on novel theories. He was worried that the Daubert standard was too complex and indeterminate to provide effective guidance for the lower courts. Anyone who has followed the flood of cases since would have to agree with the late Chief Justice's concern—a concern that has nothing to do with conservative or liberal, Republican or Democrat. My suspicion is that Daubert is typical, not exceptional in this regard. Think, to take a recent example, of the court's decision in Crawford v. Washington, which put teeth into the Confrontation Clause by excluding a whole array of statements that might have previously gotten in as exceptions to the hearsay rule. Crawford was the greatest gift to criminal defendants in forty years. The author of that opinion was Justice Scalia, joined by the other so-called "conservatives" (and so-called "liberals") on the court. I'm no conservative, but I think Crawford was wrongly decided. I do not find that scholarly discussion of that seminal case maps on to any identifiable political orientations. And I think this is far more typical of what actually goes on: Yes, there are normative views in play, but, no, they aren't obviously political views, let alone ones that map on to crude categories like party affiliation. But let me close here by returning to a point of (at least partial) agreement: Namely, that parts of the public law field really are overtly political in the crude sense. But note that even here, it's not like conservative views even in these more "lawless" fields are absent from the elite legal academy. Just off the top of my head, I think of Charles Fried and John Manning at Harvard; Thomas Merrill and Henry Monaghan at Columbia; Lillian BeVier and John Harrison at Virginia; Steven Calabresi and Martin Redish at Northwestern; Richard Epstein and Adrian Vermeule at Chicago; Lino Graglia and Ernest Young at Texas; John Yoo at Berkeley; and Viet Dinh and Nicholas Rosenkranz at Georgetown. I suppose Yale, probably our nation's most distinguished law school, is conspicuously absent here, but just as we shouldn't visit the sins of constitutional law on all of legal education, let me suggest that we shouldn't visit the apparent sins of Yale on American law schools generally! |
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Schuck: 1/26/06, 07:58 AM You list a number of elite school conservatives "off the top of your head." I strongly suspect, however, is that even if you went to the center of your well-equipped head, you would not find more than a handful of other conservatives at these schools, compared to dozens on the left. Your observation about Rehnquist's opinion in Daubert is a fair response; perhaps in my effort to cite a private law, technical evidence case, I picked a poor example. But I predict that if one were to review tort scholars' assessments of any number of "technical" liability-expanding doctrines—for example, market share liability, or narrowing of the assumed risk defense, or expanded notions of duty, or rejection of regulatory preemption—one would find that the liberal scholars tend to favor them and the conservative ones tend to oppose them. Scholars being as complicated as we are, there would certainly be exceptions, but I suspect that our predictions would be pretty accurate. In closing, I hope and think that we agree on the central points that viewpoint diversity is an important precondition for pedagogical and scholarly flourishing, and that the empirical studies I cited are not as refined in measuring this diversity as we would like because partisanship is only a crude proxy for viewpoint. We also seem to agree that the limitations of this diversity are more apparent in public law fields, especially constitutional law. We apparently disagree, however, about the degree of viewpoint diversity that in fact exists on elite faculties, and about how strong the correlation is between political orientation and one's position on the kinds of issues that arise in law school classrooms and in legal scholarship. |
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Leiter: 1/26/06, 12:38 PM I'm not sure about "dozens on the left," since I don't know of any top law faculty where social democrats, socialists, and Marxists outnumber conservatives and libertarians! But if you mean only that there are more Democrats, yes, that must surely be right—but my point was only that, even in the public law fields, there is no shortage of conservative viewpoints, and it just misleads the public to put out fake figures like "81% Democrats" based on shoddy studies. As your fair-minded summary of our debate suggests, though, this isn't a point of real disagreement. Perhaps when senior law faculty are paid like Cravath partners, we may get some insight into why there are more Democrats than Republicans at Harvard than there are at Cravath! I am certainly with you on the value of viewpoint diversity for pedagogical purposes, which is why I think it's important to emphasize both how diverse the viewpoints actually are in the elite legal academy and that political "partisanship is only a crude proxy for viewpoint," at least as that actually matters for legal education. Certainly at a time when there is a consolidated and nationwide assault on the independence of universities by conservative groups who share none of our pedagogical or scholarly concerns, it seems to me especially important to emphasize these facts. The value of viewpoint diversity for "scholarly flourishing" is a bit trickier. I think again of George Mason, the least intellectually diverse law school in the United States, but whose phenomenal success in the last 25 years is largely attributable to that fact. A familiar fact in academic life is that intellectual and scholarly work often flourishes in an environment where like-minded individuals can work together. By adopting as its market niche "conservative/ libertarian law and economics," George Mason has been able to attract a highly productive and accomplished faculty, who no doubt stimulate each other to do more and better work. One of the more unfortunate consequence of Justice Powell's introduction of the "diversity" mantra into American public discourse is that it obscures the extent to which in scholarly pursuits depth, subtlety, and the comprehensive exploration of the possibilities of an intellectual paradigm require the stimulation of colleagues who share some basic premises, substantive and methodological: it's some degree of homogeneity, not diversity, that often makes possible the deepest work. The beauty of American law schools is that George Mason is but one of the many options from which law students, and legal scholars, can choose, and that most good law schools are large enough to accommodate clusters of scholars who share "viewpoints," but who, taken together, produce a remarkable diversity of viewpoints on the real issues that engage lawyers, judges, and academics. |
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Schuck: 1/27/06, 08:31 AM Brian, two quick points, and then I think I'm "debated out" on this. First, you continue to emphasize the relative absence of socialists, Marxists, and anarchists on elite faculties, as if this proved that the left is not much more prevalent than the right. But the viewpoints that are most salient for legal education in the U.S.—those that are held by the vast majority of Americans and thus are represented in our law—are not those extremes but the still-broad range of views stretching from social democrats on the left (of which there are plenty on elite faculties) to staunch conservatives and libertarians on the right (of which there are relatively few). Second, I certainly agree that George Mason is a very successful addition to legal education, filling an important niche. But our students should not have to choose George Mason in order to be exposed to significant numbers of conservative and libertarian faculty. We should foster viewpoint diversity within institutions, not just across them. |
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Leiter: 1/27/06, 12:41 PM I actually didn't mention anarchists at all (but I know all we folks on the left look alike!) and I wasn't trying to show that the "left" is not much more prevalent than the "right." I did want to call attention to the fact that law schools, and universities quite generally, are the most intellectually diverse institutions in American society, and by a wide margin. You can't go to The New York Times or the United States Senate or the Cravath, Swaine & Moore, or the U.S. Supreme Court (let alone Fox TV!) and find libertarians, conservatives, wishy-washy Democrats, Wall Street Republicans, social democrats, and Marxists...but you can find all those viewpoints, and many more, in any intellectually serious university in the country. So the idea that there is a special problem about intellectual diversity at law schools or universities does seem to me to stand reality on its head. I am astonished by the suggestion, though, that educational institutions ought to define the scope of relevant viewpoints not by intellectual and scholarly criteria but by reference to the political demographics of the U.S. population at large. (That some liberals want to do this too doesn't make it any less objectionable.) Using "the vast majority of Americans" as a benchmark is an especially surprising proposal for legal education in the era in which globalization of law and legal study is the reigning theme. Of course, by global standards—say, in comparison to Britain, or Mexico, or Germany, or Canada—those Democrats who apparently constitute the majority on American law faculties are really quite conservative, and so by global standards what is astonishing about American law schools is how conservative they are (and notwithstanding your equally surprising confidence that social democrats outnumber libertarians and conservatives on American law faculties—though maybe you're right, but none of the studies with which we started shed any light on this question). When the graduates of elite law schools go not just to New York and Chicago and Houston and L.A., but also to London and Hong Kong and Toronto and Mexico City, one might think that the real worry about our best law faculties is how far they tilt to the right by comparison to the legal and political communities around the globe which will intersect with the practice of the 21st-century lawyer. I don't really want to push that argument, though, since I don't think political demographics are relevant when assessing the intellectual viewpoints that should be represented in a serious legal education. As to George Mason, I may not have expressed myself clearly. I wanted to use that excellent law school only as an example of the fact that intellectual diversity is not necessarily important to scholarly (as distinct from pedagogical) flourishing. The idea, though, that students would have to choose George Mason "in order to be exposed to significant numbers of conservative and libertarian faculty" is, I'm sure we agree, silly, given that there are substantial clusters of such faculty at almost all the top law schools, except perhaps Duke and Georgetown (even Yale has its rather substantial and impressive contingent of libertarians and free market utopians). |
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