Paul L. Caron

Tuesday, July 24, 2018

More Reviews Of Stephen Presser's Book On Law Professors

PresserFollowing up on my previous post, Stephen Presser's Love Letter To Law Professors: 'We Are All Multicultural Progressives Now' (reviewing Stephen B. Presser (Northwestern), Law Professors: Three Centuries of Shaping American Law (West 2017)):

Scott Douglas Gerber (Ohio Northern), Book Review, 67 J. Legal Educ. 635 (2018):

Law professor Nicholas Quinn Rosenkranz quipped at a Federalist Society conference on intellectual diversity in the legal academy that his leftist colleagues at Georgetown felt that three conservatives on a law faculty of 120 was “plenty—and perhaps even one or two too many.”

Regrettably, Georgetown may be the rule rather than the exception in the culture war in American legal education. A number of the same leftist law professors who teach students in their First Amendment classes about the evils of “viewpoint discrimination” practice it. Many of the same institutions that tout tenure as a way to encourage free thought censor it by not allowing conservative and libertarian faculty candidates who think freely to get in the door. I once suggested on the ConLawProf group email list that law schools need to hire more conservative and libertarian candidates (with “more” meaning, at a minimum, at least one). The reaction? One law professor posted that I was “nuts” to suggest such a thing. As a British friend joked, “It is not yet criminal to be a conservative lawyer in America, but it is certainly unconstitutional.” Clearly, as I see it, the vast majority of America’s law schools have no interest whatsoever in the type of diversity they should value most: intellectual diversity.

Stephen B. Presser, the Raoul Berger Professor of Legal History Emeritus at Northwestern University’s Pritzker School of Law and a scholar who has been called by the Liberty Fund’s Library of Law and Liberty “the most conservative law professor in America associated with a major law school,” is profoundly concerned about the consequences of what I regard as the Kulturkampf in American legal education. Presser’s new book, Law Professors: Three Centuries of Shaping American Law, provides the intellectual history of how America’s law schools have been transformed from what should be their raison d’être—teaching students about the law—to, in my opinion, political action committees for the Democratic Party. ...

I have only one significant criticism of Presser’s terrific book about the history of the law professoriate: He understates the seriousness of the left’s Kulturkampf. Several examples come quickly to mind.

To return for a moment to the topic that opened this review—the law faculty hiring process—jobs are frequently set aside for minorities and women, and conservative and libertarian white males need not apply, or so it seems. I have heard of faculty searches at various law schools in which a member of the faculty or administration has stated that his or her law school has an open position, but that the position must (not “could”) be filled by a minority or a woman. In fact, the faculty hiring process has gotten so out of hand that one law school did not immediately disqualify a minority candidate who recently had failed the bar examination. (You read that correctly: a law professor who failed the bar exam.) Another note of concern is this: Race and gender are used much more aggressively in faculty hiring than in student admissions—and that is saying something—in large part because there are far fewer faculty positions available than there are admissions slots. One law school with which I am familiar was criticized by both the ABA and the AALS for not hiring enough minority faculty, even though that law school had (i) invited every minority faculty candidate listed in the AALS faculty recruitment registry to interview with the law school at the hiring conference in Washington, D.C., (ii) asked every minority faculty candidate who interviewed with the law school in D.C. to fly back to campus, all expenses paid, to interview further, and (iii) offered a job to every minority faculty candidate who accepted the invitation to visit the campus. In short, the law school could do little else to try to recruit minority faculty candidates—and what it did was illegal—but that still was not good enough for the accrediting bodies. ...

As the media have been reporting for several years now, America’s law schools are in serious financial trouble because not enough students are applying for admission. Lobbying Congress in such transparently partisan terms, as my leftist colleagues are prone to do—Sessions is a Republican, so he must be evil; Bill Clinton is a Democrat, so it was OK for him to commit perjury—only makes us look worse to prospective students.

It is time to start behaving like professors again. I can think of no better way to begin than by recommending that everyone who cares about the current state of American law—and we all should care a lot—read Stephen Presser’s intellectual history of the law professoriate. After all, we cannot solve a problem until we understand its origins.

Bernard W. Bell (Rutgers), Book Review, 67 J. Legal Educ. 626 (2018):

Presser presents a list of culprits responsible for the current conception of law, most particularly critical legal scholars, President’s Barack Obama’s view of the law as infinitely malleable, the inadequately theorized constitutional jurisprudence of Justices Sandra Day O’Connor and Anthony Kennedy, Cass Sunstein’s “liberal paternalism,” and academics’ attack on textualism and originalism in constitutional interpretation (illustrated by the work of Akhil Amar and Bruce Ackerman). Presser notes that these forces have not gone unopposed—Antonin Scalia, Mary Ann Glennon, and others have stood as modern-day versions of Horatio at the Gate, seeking to preserve the determinativeness, authority, and indeed majesty, of the law (457). Nevertheless, Presser asserts, the prevailing academic winds have made law professors irrelevant. ...

If Law Professors does not convince us that Presser’s catechism is correct, Presser is asking the academy to teach and write as if his catechism were true so as to uphold the law’s authority. Such an endeavor is unlikely to succeed, even if the legal academy were willing to embrace it—law too obviously lacks Blackstonian certainty. And ultimately, surely no academic discipline could commit itself to such deception.

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Linda Beale's comment is laughable, given its very narrow sample and the dominance of left-wing fanatics in faculties, including those who make "scholarly" posts like "Trump celebrates his (very expensive) tax cuts for himself and his rich golfing buddies" and "What is the GOP goal? A return to the 'gilded age' (or worse)". Why shouldn't "diversity" include include at least one "white male conservative?"

Posted by: Woody | Jul 24, 2018 8:35:49 PM

The only time I have ever seen faculty searches even considering, much less decided based on, a candidate's political preferences was at the University of Illinois under Heidi Hurd, who declared that she planned to hire those white male conservative scholars who she felt were generally underappreciated by the academy. That year, we conducted several searches and made offers to one white male after another, mostly on the right of the political spectrum. The authors' and reviewers' speculations about hiring aside, the only people who are pushing for faculty hires to take political perspectives into account are people on the right.

Posted by: Linda Beale | Jul 24, 2018 9:50:56 AM