Paul L. Caron

Thursday, April 18, 2013

Tushnet: Reflections on the Federalist Society, Pepperdine, and 'Conservative' Law Schools

Pepperdine Campus PhotoFollowing up on Tuesday's post, Chronicle of Higher Education, How Conservatives Captured the Law, and in particular this statement:

Academics associated with the Federalist Society have educated a new generation of conservative law students, played a role in the rise of openly conservative law schools like Pepperdine's and George Mason's, and succeeded in gaining respect and traction for conservative legal ideas.

Mark Tushnet (Harvard), Reflections (I) on the Federalist Society Conference on Intellectual Diversity (Balkinization):

The idea is that institutions offer bundles of attributes to consumers (applicants), and each consumer chooses the bundle that, from her point of view, maximizes the achievement of her preferences as she understands them at the moment of choice. I used Pepperdine as my primary example, because it’s a school with a strong public law faculty that leans more conservative than other institutions (but I could have offered others – San Diego and St. Thomas in St. Paul, for example). So, consider a conservative student applying to Harvard and Pepperdine. If she gets in to Harvard, she’s certainly going to get into Pepperdine, and the LSAT and GPA numbers suggest pretty strongly that she’ll do better at Pepperdine than at Harvard. So, her choice is between (a) a liberal-leaning school where she’ll probably do all right but might not be at the top of the class, and the job opportunities associated with having a Harvard degree and (b) a conservative-ish law school where she’ll probably do quite well, with the job opportunities available to a student at the top of Pepperdine’s class.

For more, see:

The article concludes with an identification of those law schools whose academic reputation scores have improved or declined the most during the fifteen year period, along with a brief discussion of some potential causes for those changes.

Table 11

... Undoubtedly there are a number of other ways in which a school’s administration can, at least under certain circumstances, significantly influence their school’s academic reputation scores. It is quite possible, for example, that Pepperdine’s substantial gains over the period (a rise of .4) could in some ways be related to the notoriety of their dean (Ken Starr). Chart Q plots Pepperdine’s academic reputation scores with the timing of Starr’s arrival and departure at the school.

Table 2

I identified three research-oriented law schools where, compared to the rest of the legal academy, conservatives have fared well during faculty hiring: George Mason, San Diego, and Pepperdine. Why these three? (If there are other law schools that have tried to build a strong conservative faculty brand, they have escaped my attention.)

  1. George Mason's Law & Economics emphasis.
  2. San Diego Law is a conservative Catholic law school that hosts The Right Coast blog.
  3. Pepperdine Law is a Christian-centered law school that hired Kenneth Starr to serve as dean as dean after he rapped up this tenure as Independent Counsel of the Clinton Whitewater investigation.

As show in the scatterplot above, all three law schools have fared very well in Academic Reputation:  GMU (#76 to #51, +25), San Diego (#69 to #51, +18), and Pepperdine (#107 to #65, +42). 

But wait, fellow academics vote in the USN Academic Reputation survey, and supposedly we are an overwhelmingly liberal.  So why did these three conservative school fare so well?  This could be combination of three factors:

  • Discounts on productive scholars. ...
  • USN "echo chamber" effect. ...
  • USN Voters. ...

If moving on USN Academic Reputation is really important to a faculty, the lesson here is, "make a hard, high-profile right turn, and wait a decade."  That said, there are probably not enough spoils to go around for more than a handful of conservative law schools to use this strategy.


Richard Garnett (Notre Dame), Intellectual Diversity and Institutional Pluralism (PrawfsBlawg):

[T]hinking about the fact that the "conservative" schools Mark identified are all schools with a religious character or affiliation -- I think we need to be careful about equating a school's distinctive religious character with a "conservative" ideological character.  A Catholic law school, for example, might have more than the typical number of students and faculty who support closer regulation of abortion, but that same school might also have more than the typical number of students and faculty who are skeptical of certain forms of libertarianism or who support an arguably inefficiently (by some measures) generous level of social-welfare programming.

Mark Tushnet (Harvard), Comment (PrawfsBlawg):

On Rick's last point, I think I wrote that the three faculties had strong conservative public law faculties, not that the schools "were" in some general sense conservative, although maybe at some point I did use the summary label. In my remarks at the Federalist Society conference I mentioned the possible "social justice" orientation of some Catholic institutions. (Also, it's not really a quibble to point out that Pepperdine isn't a Catholic institution!) I may be posting some additional thoughts on across-institution diversity over the next few days.

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"The weirdness of that proposition suggests that the argument’s gone off the rails somewhere. I think it does when people worry about within-institution diversity without thinking about the implications of across-institution diversity."

I'm a bit surprised to see this reliance on across-institution diversity rather within-institution diversity. If we had black schools, white schools, Asian schools, and so on, probably everyone would agree that this is not a good thing, even though there is much across-institution diversity.

The natural rejoinder is that it's less important to have within-institution ideological diversity than to have other types of diversity. The accuracy of that belief was part of what the conference was intended to address. So I do not think anything has gone off the rails.

Posted by: andy | Apr 18, 2013 10:17:25 AM

I can't speak to Pepperdine or San Diego, but George Mason's USN faculty rep score significantly lags its US News rep. among lawyers and judges, and even more so objective measures of faculty quality, in particular the St. Thomas study.

Posted by: David Bernstein | Apr 18, 2013 9:21:40 AM