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Thursday, April 13, 2017

Adler:  Law School Faculties Need More Intellectual Diversity

Jonathan H. Adler (Case Western), Law School Faculties Need More Intellectual Diversity:

There is something about judicial nominations that brings out the worst in U.S. Senators. Judging from the academic debate over the nomination of Judge Neil Gorsuch to the Supreme Court, it seems to bring out the worst in legal academics too.

Judge Gorsuch is an avowed proponent of “originalism,” the idea that the original public meaning of the Constitution’s text should control the outcome in constitutional cases. To some this approach to constitutional interpretation may seem like common sense, but it is hardly a universal view. Although many judges and justices ascribe to an originalist judicial philosophy, this approach is not popular in the academy.

What is notable about the academic debate over originalism is not that such a debate exists, but that so much of the debate is misinformed — misinformed about what originalism does or does not entail and why it might be endorsed. In the weeks leading up to the vote on Neil Gorsuch’s nomination, numerous legal academics rose to attack poor caricatures of originalism, and their misinformed attacks were often repeated in the Senate.

Some of the straw men offered by otherwise-notable academics were so flimsy, it was as if they had never encountered a real originalist in the flesh, let alone spent time trying to understand the point of view they were critiquing. Again, the problem was not that they were attacking originalism, so much as the critics did not even appear to comprehend the target they were shooting at.

There are many possible reasons for the empty debate over originalism. One possibility is that some of these critics lack familiarity with originalism, along with other points of view that are unpopular in the academy.

The existence of ideological imbalance on law school faculties has been documented in numerous studies. Analyses of law school hiring, political contributions, and legal scholarship all find left-right disparities. While most law schools have a few token right-leaning professors, these scholars are often relegated to “private law” subjects (e.g., business, contracts, intellectual property), and are less prevalent in “public law” subjects (e.g., constitutional law).

Indeed, most major law schools have fewer conservatives or libertarians on their faculty than can be found on the U.S. Supreme Court.

As a consequence, at many law schools, students rarely encounter the forceful articulation of right-of-center views. Thus it should be no surprise that many who study in American law schools fail to understand such views. Reading a book or some court opinions can only do so much. ...

The lack of ideological diversity on law school faculties is fairly clear. The causes of the ideological imbalance, however, are the subject of some dispute, likely because a range of factors are in play. ...

Law schools, as much as any other part of the academy, rely upon a robust exchange of views to further their pedagogical mission. Insofar as law school faculties fail to reflect and represent the range of views found within the legal profession — let alone society at large — it is difficult for law schools to fulfill their pedagogical aims. If law schools (and the AALS) were truer to their mission, they would do more to understand and address the causes and consequences of ideological uniformity on law school faculties.

National Review, Law Schools Need More Diversity — Intellectual Diversity

http://taxprof.typepad.com/taxprof_blog/2017/04/adler.html

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Comments

It's not going to change because law faculties rationalize their existence on the basis of their "progressive" values. There's no other reason for them to exist.

Posted by: mike livingston | Apr 13, 2017 2:59:03 AM

Imagine my *surprise* when I discovered this was a polemic about political diversity as opposed to one about a hiring scheme wherein 40% of faculty come from just two of the country's more than two hundred law schools.

Posted by: Unemployed Northeastern | Apr 13, 2017 8:11:45 AM

Last time I checked, law faculty were not spending a lot of time debating each other, nor sitting in on the lectures of other profs to see how they view an issue. The benefit of a faculty with diverse views on constitutional law does not accrue to the faculty members but rather the students, who will learn to understand (or at least been exposed to) alternate approaches. Some of those students may even become professors (well, unless they list membership in the Federalist Society on their CV).

Posted by: Treeamigo | Apr 13, 2017 8:34:42 AM

1, The great conceit of “originalism” is that there ever was an “original public meaning of the Constitution’s text.” The Constitution was the product of thousands of compromises, large and small, which were agreed by the Founders for reasons good, bad, and indifferent. Some because there was no air conditioning, and it was hot and humid in Philadelphia, with the season of the Yellow Fever fast approaching.

2. The great disability of “originalism” is that if there was ever an “original public meaning of the Constitution’s text,” we lack the tools to ascertain it at this time.

3. I am far less concerned with the perceived lack of intellectual diversity in the law professoriat than with that august body’s shocking and woeful lack of experience in practicing the profession it purports to teach.

4. BTW, for all those originalists out there, whatever happened to the “original public meaning of” those puzzling 13 words at the being of the Second Amendment–“A well regulated Militia, being necessary to the security of a free State, . . . .” Their original public meaning seems to have been lost. Or maybe not ascertained. Or maybe they interfered with someone’s preordained “originalist” interpretation. Or maybe NRA.

Posted by: Publius Novus | Apr 13, 2017 8:45:51 AM

Mr. UN: No one seems disturbed that your 40% factoid. Just guessing, but I’ll bet the number jumps much higher (doubles, maybe?) if you add in just one or two more schools. Nor does anyone seem to be disturbed by the fact that the entire SCOTUS comes from three schools.

Mr. Treeamigo: It is not likely that “[s]ome of those students may even become professors,” unless they are at the two or three anointed schools. See Mr. Unemployed Northeastern’s remark above.

Posted by: Publius Novus | Apr 14, 2017 8:16:00 AM

Pubs: "Whatever happened to the original public meaning of those puzzling 13 words at the being of the Second Amendment?"

Though I'm not a strict originalist, this is a pretty easy one:

"Well-Regulated" referred to the proper working order of something, firearms for example, not the strict control and registering of such things as people today use the word:

http://www.constitution.org/cons/wellregu.htm

"Militias" referred to the citizenry, specifically in defense of state governments, which were necessarily opposed to a federal standing army, for example:

"A well regulated militia, composed of the people, trained to arms, is the best and most natural defense of a free country." - James Madison

As an aside, knowing your personal politics I feel compelled to suggest that far from the original intent of the 2nd Amendment, you're motivated more by the "Living Constitution" perspective, which allows judges and lawyers to selectively and for their own purposes read into and read out of the Constitution anything they want without having to go through the *original* Amendment process. For example, the federal Drug War, which to the best of my knowledge has no constitutional basis whatsoever...

Posted by: MM | Apr 15, 2017 11:10:00 AM

I have yet to meet any professors who are hard core communists even though about 1 in 5 people around the word are.

But something tells me that's not the kind of intellectual diversity libertarians have in mind.

Posted by: IntellectualDiversity | Apr 15, 2017 11:25:07 AM

I have yet to meet any professors who are hard core communists even though about 1 in 5 people around the world are.

But something tells me that's not the kind of intellectual diversity libertarians have in mind.

Posted by: IntellectualDiversity | Apr 15, 2017 11:26:15 AM