James Allen (Garrick Professor of Law, University of Queensland), A Law School Lacked and Lost:
I fell in love with the place my first week there. I was a Visiting Professor at the University of San Diego School of Law, taking a sabbatical from my home institution, the University of Queensland in Australia. That was back in January of 2013. ...
What really made my sabbatical visit were the academics at the USD law school. They were smart and nice, and very hospitable. Perhaps that is not all that unusual at any law school, but what I had not really expected was the wide range of views I found across the faculty. Say this sotto voce, and outside the earshot of any present-day university administrator, but the USD law school even had a critical mass of what you might classify as “conservative legal thinkers.” As someone who had done his law degree in Canada, a Masters at the LSE in London, has taught around the anglosphere, and has seen first-hand the collapse of viewpoint diversity on campuses around the anglosphere, this was wholly unforeseen. In fact, with about a quarter of the then USD law faculty being right-of-centre types in all their various manifestations, I soon learned that the 2013 USD was probably the most conservative law school in the US (with the possible exception of George Mason, though there the iconoclasts are mostly libertarians). But everyone seemed to get along. Each Friday there was a staff seminar, and these crossed the gamut of topics and viewpoints and were excellent. ...
After seeing the intellectual community at USD, I readily understood why this small private Catholic university had a law school that Brian Leiter around that time had ranked in the top 25 for the quality of its research. A noticeable chunk of the credit for this had to go to Larry Alexander. ...
Fast forward now to the second half of 2019, just before the pandemic. I had another sabbatical owing and wanted to go back to USD. With help from my friends Maimon Schwarzschild, Steven Smith, and Larry Alexander I got another offer and grabbed it. ...
Things at USD law school this second time were not quite the same.
A bit before my arrival, Alexander had written a short newspaper article with Amy Wax on the virtues of middle-class and bourgeois values—finish high school, show up to work on time, hold off having kids till you’re working and have a reliable partner, that sort of thing. I’d seen a draft before it went into the Philadelphia Enquirer and thought it wholly unobjectionable. This was just a listing of the Protestant work ethic virtues that experience showed delivered good consequences to anyone who signed up to them. But some had insisted on seeing the piece through the prism of identity politics. Some colleagues at USD had attacked Alexander. Others had come to his defence.
When I got there, I learned that what you might describe as the conservative wing of the law school was now largely being kept off key law school committees, most importantly the hiring committee. For me, the 2019 sabbatical was as excellent as the one six years before. But I sensed this island of comparative tolerance for iconoclastic, nonconformist, dissident—save time and call it “conservative”—viewpoints had noticeably shrunk. And if future hires were to be judged through the prism of “diversity and inclusion” and not on straight-up merit, well, you could guess how many conservatives would be hired. The USD law school would slowly become like all the other 200-odd accredited US law schools where Democrat-donating and voting law profs outnumber Republicans by double figures to one. This little sanctuary of open-mindedness would wither and die.
A few weeks ago, I learned that some of the stalwarts of the USD law school, well-known and long-standing professors of law who certainly could not be described as “progressives,” had all put in their notice to take up the three-year retirement option. USD was losing Larry Alexander. Losing Steve Smith. Losing former dean Kevin Cole. Losing Gail Heriot. All of them had endured enough. Yes, there are some nonconformists still there who haven’t announced their take-up of the retirement pathway, and will battle on. But we can’t kid ourselves. As that unexpected sanctuary for dissident conservative outlooks, USD was in its death throes.
Hiring was now to be done explicitly with an eye to “diversity” (though of course, not the sort that has anything to do with outlook). In the not-too-distant future, this small private law school will be much of a muchness with other like law schools. Its market differentiation was occasionally to grab up people whose views made being employed harder than their qualifications would otherwise warrant. Taking advantage of this market failure, as it were, allowed USD to punch well above its weight. Alas, seemingly no more. The capture of law schools by one dominant outlook rolls on to the peripheral outliers, to that wonderful USD law school that gave me two magnificent sabbaticals. And I cannot tell readers how sad this all makes me. I thought of Shakespeare and Much Ado About Nothing.
That what we have we prize not to the worth
Whiles we enjoy it, but being lacked and lost,
Why, then we rack the value, then we find
The virtue that possession would not show us
While it was ours.
I spent 11 summers as a visiting professor at USD, the final six as the Herzog Summer Visiting Professor in Taxation, before making a lateral move from Cincinnati to Pepperdine in 2013. Like Professor Allen, I reveled in the beauty of Southern California and the ideological diversity of the USD faculty. Indeed, those were two of the main drivers behind my decision to join the Pepperdine faculty nine years ago.