The Volokh Conspiracy

has been published at Reason.com.

It’s not a favorable review–I argue that Katznelson grossly exaggerates the extent to which FDR was stymied from pursuing a progressive agenda by the power of southern Congressmen, and that he is unpersuasive in excusing some of Roosevelt’s worst policies on the grounds that the alternative was to put democracy in grave peril.

But the book is even worse than the review lets on. First, there are many times when the subject at issue cries out for the author to display at least a rudimentary understanding of economics, but he never does.

Second, and more important, while Katznelson’s prose is fine, the book is both a disorganized mess, with little apparent rhyme or reason as to which topics the author covers and in how much detail, and way too long. To take just one very minor but telling example of unnecessary detail that clogs the narrative, we learn that Sen. Theodore Bilbo favored “loud check suits and brash ties.” That would be relevant information for a biography of Bilbo, but what does it tell us about “the New Deal and the Origins of Our Times” (the subtitle of the book)? Overall, the book reads as if Katznelson and/or his research assistants gathered lots of information on a bunch of different topics from a particular historical period, and then basically dumped the information into the book, regardless of whether and to what extent it formed a consistent narrative. As long-time readers know, I think most books written by academics are too long, and this one, in particular, could easily have been cut by at least 40%.

On the other hand, for favorable reviews here is Kevin Boyle in the New York Times, and Robert Kaiser in the Washington Post.

My law school classmate and GW professor Jeff Rosen has been named the new president and CEO of the National Constitution Center in Philadelphia. Jeff and I have sometimes sparred on this blog (no, Jeff, there is no still such thing as the “Constitution in Exile movement,”) but he’s a top notch and amazingly prolific scholar who will undoubtedly bring new prominence and intellectual energy to the Center. Among his many books, my favorite is The Supreme Court: The Personalities and Rivalries that Defined America.

My sense is that the Center, which describes itself as a “museum, town hall, and civic educational headquarters” has had limited interaction with the legal academy. Indeed, until now I was only vaguely aware of the Center’s existence. It will be interesting to see whether the Center will now engage more with Jeff’s academic colleagues.

I couldn’t find any mention of how Jeff’s new position will affect his relationship with GW, beyond the fact that he is apparently moving to Philadelphia (“I’m very much looking forward to coming to Philadelphia and experiencing all this great city has to offer”), or his other job as legal affairs editor of The New Republic.

Via Paul Caron at TaxProfBlog and the Wall Street Journal Law Blog, a proposal by Joshua Silverstein, law professor at Little Rock-Arkansas William Bowen School of Law, to eliminate the “C” in law school grading.  Here is the SSRN abstract for “A Case for Grade Inflation in Legal Education,” forthcoming in University of San Francisco Law Review:

This article contends that every American law school ought to substantially eliminate C grades by setting its good academic standing grade point average at the B- level. Grading systems that require or encourage law professors to award a significant number of C marks are flawed for two reasons. First, low grades damage students’ placement prospects. Employers frequently consider a job candidate’s absolute GPA in making hiring decisions. If a school systematically assigns inferior grades, its students are at an unfair disadvantage when competing for employment with students from institutions that award mostly A’s and B’s. Second, marks in the C range injure students psychologically. Students perceive C’s as a sign of failure. Accordingly, when they receive such grades, their stress level is exacerbated in unhealthy ways. This psychological harm is both intrinsically problematic and compromises the educational process. Substantially eliminating C grades will bring about critical improvements in both the fairness of the job market and the mental well-being of our students. These benefits outweigh any problems that might be caused or aggravated by inflated grades. C marks virtually always denote unsatisfactory work in American graduate education. Law schools are the primary exception to this convention. It is time we adopted the practice followed by the rest of the academy.

It is worth the time to read the whole article, because it is a more nuanced argument than perhaps the abstract suggests.  In fact, speaking as someone best described as a reluctant convert to the virtues of a required mean because of the problems of grade compression, Professor Silverstein manages to persuade me as to the bottom of the scale and where it should cut off, given the realities of the perceptions of grades.  (I remain as convinced as ever of the need to rein in the pressure at the top – and it is the nuance of Silverstein’s argument that persuades me that these are not quite identical.) Part of the nuance of the argument is that Silverstein favors – “I am a staunch proponent” – the practice of grade normalization (required mean or some form of required curve).  It’s the lack of some required mean or curve that produces  pressure toward the top (in part from unstated forms of competition among professors that always ratchet the mean upwards, never downwards, or at least only rarely so). Having taken care of that top-end problem by a forced mean or curve, Silverstein can turn his attention to the bottom.

Silverstein argues for chopping off the C grade, first, on the grounds that many law schools essentially don’t use it, and this puts students from one school at a disadvantage to students from schools that don’t give Cs.  Although a matter of importance to some law schools, in context of his central thesis about C grades, it is the less relevant argument.  But he also argues – and this is the heart of the argument – that even within a school and its grading system, students suffer unjustified internal psychological harms as well as unjustified external market harms from being classed as C students, as though it were a grade like any other, but just a grade like any other that happens to be a bad grade.  These harms aren’t really justified in more than a tiny number of cases; a B- would send an adequate signal about performance without stigmatizing the student in the way that a C does.  Silverstein would ideally like to see the following:

At Deadspin, Reuben Fischer-Baum has an interesting piece cataloguing the highest-paid state employees in each of the fifty states. Forty of fifty are coaches, all but one of them in either football or basketball.

As Fischer-Baum notes, this state of affairs is not quite as egregious as it may at first seem. Many of these Division I football and basketball programs generate a lot of revenue for their state universities, and the coaches are often paid out of that revenue rather than taxpayer funds. I would also add that NCAA coaches are among the very few state employees who face a serious risk of being fired for poor performance. Most Division I football and basketball coaches get fired within a few years of starting a new job.

On the other hand, as Fischer-Baum also points out, many of the coaches are paid far more than is justified by their marginal contribution to their universities’ revenue streams, even as the NCAA – supported by state and federal governments – continues to operate a cartel that tries to prevent all financial compensation for the players. I made the case for paying Division athletes here and here.

Finally, the state of Maine deserves special recognition from legal academics. According to Fischer-Baum, the highest-paid state official in the Pine Tree State is a law school dean.

UPDATE: In the original version of this post, I accidentally got Fischer-Baum’s first name wrong (I put “Robert” instead of “Reuben”). Perhaps I subconsciously confused him with the late Bobby Fischer. In any case, I apologize for the error, which has now been corrected.

The Harvard Crimson is currently running “a three-part series on gender disparity issues at [Harvard] Law School.” Part I reports that there are 17 tenured or tenure-track women out of 92 total on the Harvard Law School faculty. It goes on to report:

Since she took the helm of the school four years ago, [Dean] Minow has worked to change these numbers. Her first step: hiring equal numbers of men and women for entry-level faculty positions since 2009. This year, the Law School has made two hiring offers, one to a man and one to a woman.

Annually, the entry-level hiring committee conducts about 40 interviews, which are balanced in terms of gender breakdown. From these initial interviews, the hiring committee whittles down the pool of potential candidates, who must present to a faculty workshop, secure the recommendation of the hiring committee, and finally secure the approval of the faculty as a whole before they are hired. All the while, the hiring committee is careful to retain an equal number of male and female candidates, according to Law School professor David J. Barron ’89, chair of the entry-level committee.

The goal of having more female faculty members is “very much part of the consciousness, and consciousness matters,” said Barron.

At least as described, this sounds rather like a strict 50/50 gender quota, doesn’t it?

Reading this article, I couldn’t help but recall the recent conference on intellectual diversity at Harvard Law School. Readers may recall that Dean Minow issued an eloquent endorsement of intellectual diversity in conjunction with that conference:

“He who knows only his own side of the case, knows little of that.” John Stuart Mill’s insight carries importance for any place of learning and special significance for a law school. For one cannot truly understand a legal argument on behalf of one client or side without thoroughly understanding and addressing competing arguments and objections. Even if there were no other reasons available, this would supply sufficient basis for a robust commitment to intellectual diversity among the faculty and students, courses and journals, activities and speakers at Harvard Law School.

But there are other powerful reasons to pursue and nurture intellectual diversity at Harvard Law School. We recruit extraordinary students and work hard to equip them to pursue great careers and great dreams. Both in honing their aspirations and equipping them to achieve them, nothing works as well as serious intellectual encounters with smart and motivated individuals with varied viewpoints. Faculty and students also advance knowledge and law reform through scholarship and public service. Here, too, debates within and across groups deepen scholarship and test law reform ideas. It would be wonderful if one did not have to leave Harvard Law School to discover objections and improvements to descriptions and revisions of financial institution behavior, consumer products safety, national security strategies, federalism, and constitutional adjudication, just to name a few current subjects of research and reform work, but it will suffice if being at Harvard Law School affords faculty and students with super preparation for any ideas and concerns that may be encountered elsewhere. This is the path of truth-seeking; this is the method of iterative improvement. Yet there is at least one more crucial reason for placing priority in intellectual diversity within this institution. The bet made by commitments to the rule of law and to democracy is that we can use reason and participatory institutions to govern diverse and often contentious individuals and groups. That bet cannot prevail without cultivation of leaders who set the example for civil and curious engagement across all kinds of divides—be they defined by race, region, class, language, political party, gender, ideology, or other signifiers of difference. Modeling and cultivating honest and engaged discussion across lines of difference is not only our best practice. It is our commitment to make good on the privileges that the Harvard Law School enjoys, reflects, and bestows.

John Stuart Mill also wrote, “In all intellectual debates, both sides tend to be correct in what they affirm, and wrong in what they deny.” I am not sure he is right, but I think we will make more progress testing this and many other propositions in the company of talented people who draw sustenance from varied and clashing intellectual resources. We may even find surprising points of agreement and convergence, but we would not even know of this wonderful possibility in the absence of intellectual diversity.

In light of Dean Minow’s statement, I wonder whether the goal of having more conservative/libertarian faculty members is now also “very much part of the consciousness” at Harvard. (For what it’s worth, women are far better represented than conservatives/libertarians on almost all top law faculties, including Harvard’s.) Will Harvard Law School also be adopting a strict 50/50 quota for intellectual diversity? Is this sort of quota appropriate for gender? If so, would it not also be appropriate for ideology?

Rodney Smolla, previously a prominent law professor and dean of Washington & Lee School of Law, has resigned from his position as president of Furman University for personal reasons. According to this story, he is recently divorced from his wife of fourteen years. Smolla will be a visiting professor at Duke and Georgia law schools next year.

I quite enjoyed reading David Hyman’s new article of this title. It vividly illustrates a point that I tried to make three weeks ago at the Intellectual Diversity Conference at Harvard Law School (Panel 2 – 47:00) — which is that the liberal echo chamber of elite law schools has made them startlingly poor at predicting and analyzing what arguments will actually succeed in American courts. (See also Randy’s thoughtful discussion of this topic.) Hyman’s piece is exactly right, I think, and it is also breezily and stylishly written. Here is the abstract:

Almost without exception, law professors dismissed the possibility that the Patient Protection and Affordable Act Act (“PPACA”) might be unconstitutional — but something went wrong on the way to the courthouse. What explains the epic failure of law professors to accurately predict how Article III judges would handle the case? After considering three possible defenses/justifications, this essay identifies five factors that help explain the erroneous predictions of our nation’s elite law professors, who were badly wrong, but never in doubt.

Download Hyman’s article here.

Last week, I posted about a conference at Harvard on the topic of intellectual diversity in the legal academy. I’m pleased to report that the conference was a great success, well conceived and well executed by the excellent students of the Harvard chapter of the Federalist Society. If nothing else, it succeeded in shining a light on the stark political / jurisprudential / methodological imbalance at the top law schools. It turns out that many of these schools are just like Georgetown Law — where most students will graduate after three years without ever once laying eyes on a conservative or libertarian professor at the front of a classroom.

Harvard Law School Dean Martha Minow was unable to attend the conference, but she did provide a written statement, which is an eloquent endorsement of intellectual diversity:

“He who knows only his own side of the case, knows little of that.” John Stuart Mill’s insight carries importance for any place of learning and special significance for a law school. For one cannot truly understand a legal argument on behalf of one client or side without thoroughly understanding and addressing competing arguments and objections. Even if there were no other reasons available, this would supply sufficient basis for a robust commitment to intellectual diversity among the faculty and students, courses and journals, activities and speakers at Harvard Law School.

But there are other powerful reasons to pursue and nurture intellectual diversity at Harvard Law School. We recruit extraordinary students and work hard to equip them to pursue great careers and great dreams. Both in honing their aspirations and equipping them to achieve them, nothing works as well as serious intellectual encounters with smart and motivated individuals with varied viewpoints. Faculty and students also advance knowledge and law reform through scholarship and public service. Here, too, debates within and across groups deepen scholarship and test law reform ideas. It would be wonderful if one did not have to leave Harvard Law School to discover objections and improvements to descriptions and revisions of financial institution behavior, consumer products safety, national security strategies, federalism, and constitutional adjudication, just to name a few current subjects of research and reform work, but it will suffice if being at Harvard Law School affords faculty and students with super preparation for any ideas and concerns that may be encountered elsewhere. This is the path of truth-seeking; this is the method of iterative improvement. Yet there is at least one more crucial reason for placing priority in intellectual diversity within this institution. The bet made by commitments to the rule of law and to democracy is that we can use reason and participatory institutions to govern diverse and often contentious individuals and groups. That bet cannot prevail without cultivation of leaders who set the example for civil and curious engagement across all kinds of divides—be they defined by race, region, class, language, political party, gender, ideology, or other signifiers of difference. Modeling and cultivating honest and engaged discussion across lines of difference is not only our best practice. It is our commitment to make good on the privileges that the Harvard Law School enjoys, reflects, and bestows.

John Stuart Mill also wrote, “In all intellectual debates, both sides tend to be correct in what they affirm, and wrong in what they deny.” I am not sure he is right, but I think we will make more progress testing this and many other propositions in the company of talented people who draw sustenance from varied and clashing intellectual resources. We may even find surprising points of agreement and convergence, but we would not even know of this wonderful possibility in the absence of intellectual diversity.

Video of the conference is available here. Some highlights include co-conspirator Jim Lindgren’s presentation of the startling empirical data on intellectual diversity (Panel 1 – 6:10); Jack Goldsmith’s powerful remarks about what it is like to be a right-leaning professor at Harvard Law School (Panel 1 – 18:30); and Robby George’s eloquent observations about the “non-conscious discrimination” that is at least partially responsible for this extreme imbalance (Panel 3 – 20:30).

Watch the whole thing.

The Harvard Chapter of the Federalist Society is hosting a very important conference tomorrow on intellectual diversity in the legal academy.

Many people realize that legal academia “leans” to the left. But even alumni — indeed, even major donors — are often unaware of the extent of the imbalance. At Georgetown, for example, the ratio of liberals to conservatives/libertarians is roughly 116 to 3. At most top schools, the ratio is similar. One might quibble about definitions, but even on the broadest conception of “conservative” or “libertarian” or, let’s just say, “right of the American center,” most top law schools can count such professors on one hand. In public law, and particularly constitutional law, the disparity is even more extreme.

As a rule, professors don’t like to talk about this. And so it has fallen to the excellent students of the Harvard Federalist Society Chapter to conceive and organize this first-rate conference. Here is the agenda:

Panel I: Problem: is there a lack of intellectual diversity in law school faculties?
12:00-1:00 p.m.

Jack Goldsmith (Harvard Law School)
James Lindgren (Northwestern University Law School)
Mark Tushnet (Harvard Law School)
Moderator: David Barron (Harvard Law School)

Panel II: Effects: should law schools care about intellectual diversity?
1:30-3:00 p.m.

Richard Fallon (Harvard Law School)
Victoria Nourse (Georgetown University Law Center)
Michael Paulsen (University of St. Thomas School of Law)
Nicholas Quinn Rosenkranz (Georgetown University Law Center)
Moderator: Stuart Taylor (National Journal)

Panel III: Solutions: encouraging intellectual diversity
3:30-5:00 p.m.

Paul Campos (University of Colorado Law School)
George Dent (Case Western Reserve University School of Law)
Robert P. George (Harvard Law School)
Jeannie Suk (Harvard Law School)
Moderator: Steven Calabresi (Northwestern University Law School)

Keynote Address
Sherif Girgis (Yale Law School)
5:30-6:00 p.m.

Reception
6:15-7:00 p.m.

This conference is open to the public. More details are available here.

Instapundit links to this Daily Beast piece:

These days, a nearly-perfect GPA is the barest requisite for an elite institution. You’re also supposed to be a top notch athlete and/or musician, the master of multiple extracurriculars. Summers should preferably be spent doing charitable work, hopefully in a foreign country, or failing that, at least attending some sort of advanced academic or athletic program.

Naturally, this selects for kids who are extremely affluent, with extremely motivated parents who will steer them through the process of “founding a charity” and other artificial activities. Kids who have to spend their summer doing some boring menial labor in order to buy clothes have a hard time amassing that kind of enrichment experience.

The irony is that even admissions officers seem to be put off by this dynamic; presumably that’s why I’m told that kids now have to have fake epiphanies about the suffering of other, less privileged people instead of just having fake epiphanies about themselves. This proves that they are really caring human beings who want to do more for the world than just make money so that they, too will, in their time, be able to get their children into Harvard.

I had something of an epiphany on this when I visited a D.C.-area private school that boasted that it had one of the best high school girls’ lacrosse teams in the country. Why in God’s name, I wondered, would anyone care about this when considering a private school, especially given that I was there for a kindergarten open house? Then it dawned on me: this is the way the school gets some girls with marginal academic credentials into elite schools. All elite colleges with women’s lacrosse have to fill their teams, and lacrosse is prevalent only at expensive private schools. A form of affirmative action for the rich, if you will. And a signal to parents that even if their girls don’t grow up to be lacrosse players, the school is willing to invest substantial resources in a variety of ways to make sure they get into a top college.

And then it dawned on me that the modern emphasis on admitting students who spend their summers building playgrounds in El Salvador, or conduct medical research at the Mayo Clinic, and so on, is another form of affirmative action for the rich (and those with well-educated parents). Not only do people from modest backgrounds not have the financial wherewithal to do such things, for most of them it would never occur to them to do them to begin with. (It certainly would never have occurred to me, and my background wasn’t all that modest.) By contrast, one of the jobs of guidance counselors at fancy private schools is to ensure that their students have exactly the kind of “experiences” that admissions officers are looking for. Not surprisingly, I was just reading how America’s most elite universities are dominated by kids from wealthy families (sorry, didn’t save the link).

This is also a reason that elite universities are so committed to affirmative action preferences. By ensuring that they have sufficient “diversity” in their classes, they claim the mantle of “social justice” while distracting potential critics from the fact that they have rigged the rest of the admissions process to favor those who have the resources and knowledge to game the system. There are all sorts of obvious reasons that, say, Harvard, would rather take in wealthy kids from well-educated families than scour the country for the diamonds in the rough. What’s interesting is how rarely they get called on it. What’s also interesting is that when Larry Summers made substantial efforts to make Harvard more accessible to kids from modest economic backgrounds he received approximately zero credit for it from his critics on the left.

UPDATE: Commenter Unemployed Northeastern writes:

Spot on. Having been lucky enough to land scholarships to attend a New England prep school back in the day (though not quite a Exeter/Andover/Deerfield-caliber institution), I can aver that the admissions standards at elite colleges for that cohort – particularly if they are athletes – are considerably lower than for Sally Q. Public School. I think rowing and hockey (men’s and women’s) are better examples than lacrosse, though. Two of the strongest sports for the Ivies and Little Ivies, and the Grotons and St Pauls and Choates and similar have produced a huge number of Olympians in those sports. The stories I could tell of B or B- students with <1200 SAT scores who got into Dartmouth or Williams or Harvard because they attended a "proper" private school and had great ability to row or play lacrosse, hockey, squash, etc... And if you read Kellogg professor Lauren Rivera's groundbreaking research* into the hiring proclivities of elite banks and consulting firms, you would learn that the golden ticket to these careers, which probably have the best exit opportunities in the American workforce, is attendance to a Top 5 university AND athletic prowess. A 3.5GPA athlete from Harvard (3.5 being the average grade at Harvard these days, thanks to years of grade inflation) is prized over a 4.0GPA non-athlete from Harvard, and of course, if one *only* attends a Bowdoin or Georgetown or UW Madison, well, you probably won't get an interview. THIS is why certain parents freak out about the strength of these sports - it is easier to get into an Ivy from athletics than academics, elite employers value athletes (most likely because they were athletes themselves, as were the people who hired them, etc etc), and let's be honest, the middle class is collapsing.

To wit, Jerome Karabel reveals in his book "The Chosen" that to this day, 40% of each incoming class at Princeton is comprised of legacies and athletes and URMs, in that order. The Harvard Crimson revealed a little while ago that even though the institution arguably has the best FA in the world, nearly half of the student body came from a family with more than $200,000 in annual household income (roughly the top 3.8% of households), while less than 1 in 25 came from the bottom quntile and less than 1 in 5 came from the bottom THREE quintiles of income.

Today, the Baltimore Sun published a detailed story about Towson University Professor Benjamin Neil, who has been accused of numerous instances of plagiarism, especially in a 2012 article on Kelo v. City of New London and post-Kelo eminent domain reform which has since been withdrawn by the Journal of Academic and Business Ethics:

A longtime Towson University professor has resigned his post as the head of the city school system’s ethics panel amid allegations that his published academic articles contain content from dozens of sources without proper — or in some cases any — attribution.

University officials and journal publishers say they are reviewing several articles submitted by Benjamin A. Neil, a legal affairs professor, after a librarian at another university alerted them to the issue.

A Baltimore Sun review of five papers published by Neil shows passages with identical language and others with close similarities to scholarly journals, news publications, congressional testimony, blogs and websites. In many cases, there was no attribution.

Neil, who has taught at Towson for more than 20 years, says he properly attributed work from other authors.

“I don’t think I’ve done anything wrong,” said Neil, 62. “The issue seems to be that I didn’t put things in quotes. But I’ve given attribution to people....”

Meanwhile, some of his colleagues across the country and authors of the original material who were contacted by The Sun criticized what they called “lazy plagiarism” and a breach of academic integrity. Experts say the incident highlights the pressures that professors feel to publish.

“It’s completely unacceptable conduct, particularly for a professor,” said Jeffrey Beall, a scholarly initiatives librarian at the University of Colorado, Denver who contacted Towson officials and journals about the alleged plagiarism.

It so happens that I was one of the scholars whom Neil plagiarized in his since-withdrawn article “Eminent Domain: In Theory – It Makes Good Cents.” Here is a site created by the Baltimore Sun which gives several examples of plagiarism from that article, including the one Neil copied from my 2007 Northwestern University Law Review article, “Is Post-Kelo Eminent Domain Reform Bad for the Poor.”

Here is the relevant excerpt from Neil’s article (which does not cite or mention mine in any way):

Professor David Dana, in his essay published in the Northwestern University Law Review, suggests that most post-Kelo reform efforts are seriously flawed because they tend to forbid the condemnation of the property of the wealthy and the middle class for “economic development,” but allow the condemnation of land on which poor people live under the guise of alleviating “blight”. This, he claims, results in reform laws that “privilege the stability of middle-class households relative to the stability of poor households” and “express the view that the interests and needs of poor households are relatively unimportant.” [footnotes omitted, but I emphasize that none of those notes cited my 2007 article]

Here is what I wrote:

In a recent essay in the Northwestern University Law Review, Professor David Dana argues that most post-Kelo reform efforts are seriously flawed because they tend to forbid the condemnation of the property of the wealthy and the middle class for economic development, but allow the condemnation of land on which poor people live under the guise of alleviating blight.This, he claims, results in reform laws that privilege[] the stability of middle-class households relative to the stability of poor house-holds and “express[] the view that the interests and needs of poor house-holds are relatively unimportant.”

With the exception of a small change in the first sentence, Neil has copied my text verbatim. That’s a fairly clear case of plagiarism. At the same time, it’s a relatively minor one. The passage in question is short and merely summarizes David Dana’s work, rather than putting forward any original ideas of my own. And Neil did cite Dana (or rather copied my citations to him). Any harm to me was probably insignificant.

If this were the only case of plagiarism in Neil’s work, I would say he deserves only very modest punishment. It might even be sufficient if he fixed the problem, apologized, and promised not to do it again. But, as the Sun article explains in detail, this is just one of many plagiarized passages in Neil’s articles. Some of the others were a lot more egregious than this one. That suggests an ongoing pattern of misconduct, not just an isolated, possibly inadvertent, error.

Serial plagiarizing of others’ work is not just a discourtesy to those authors who didn’t get proper credit. It is also a violation of the academic’s duty to contribute to our knowledge by developing new ideas, rather than merely copying what others said previously. It will be interesting to see the results of Towson University’s investigation into this case.

Atlantic:

Erwin Chemerinsky, founding dean of the University of California, Irvine School of Law, said that the concept of colorblindness holds great rhetorical appeal but that “there is no basis for concluding that the 14th Amendment equal protection clause requires colorblindness.” In drafting the 14th Amendment, he said, Congress recognized “an enormous difference between a white majority disadvantaging minorities and a white majority acting to remedy past discrimination.”

C’mon Erwin. The text of the relevant portion of the Amendment reads

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

It’s fine to conclude that based on one’s own understanding of the text, history, proper modes of interpretation and so on, the Fourteenth Amendment doesn’t require colorblindness. But surely the fact that the Amendment is itself textually “color blind,” and speaks only of “persons” and not groups, and shows no textual evidence that Congress recognized “an enormous difference between a white majority disadvantaging minorities and a white majority acting to remedy past discrimination” is itself “a basis,” even if you don’t find it persuasive, for concluding otherwise. And of course there are other reasons one could reasonably interpret the Fourteenth Amendment to require color-blindness (the natural rights tradition, alluded to in this context often by Clarence Thomas; the historic concern with and opposition to “faction”; the mistrust of states, especially the southern states and especially with regard to race, after the Civil War; the historic Plessy dissent by Justice Harlan on that basis; and so on).

So I’m not saying that it’s wrong to think that the Constitution doesn’t require color-blindness. It’s a difficult interpretive issue. But I think it’s unfortunate when legal scholars wildly overstate the certainty of things in public discourse because they happen to support one side of a controversy.

The official announcement from the law school:

Judge Douglas H. Ginsburg will join the George Mason law faculty as professor of law beginning in July of 2013. Judge Ginsburg, who is currently a professor of law at New York University School of Law, will continue also to serve as senior circuit judge of the United States Court of Appeals for the District of Columbia Circuit.

Judge Ginsburg is a leading authority on competition law and policy, administrative law, and law and economics. In his distinguished career, he has been a professor of law at Harvard University (1975-1983); held a number of posts in the executive branch of federal government (1983-1986), including assistant attorney general for antitrust in the U.S. Department of Justice; and was then appointed to the United States Court of Appeals in 1986, serving as chief judge from 2001 to 2008. Judge Ginsburg taught as an adjunct professor at George Mason over a number of years, as well as having appointments as a visiting lecturer at the University of Chicago Law School and a visiting professor at University College London, Faculty of Laws. For the past two years he has been on the faculty of New York University.

“It’s an honor and delight to welcome Judge Ginsburg back to George Mason,” said Dean Daniel Polsby. “He is a teacher of long experience and matchless depth who understands his subjects from both practical and theoretical perspectives. Our students could not have a better teacher, and we could not have a better colleague.”

Judge Ginsburg is a graduate of Cornell University and the University of Chicago Law School. In addition to courses in antitrust and other subjects, he will teach and lecture in the programs of the school’s Law & Economics Center.

I had a relatively recent conversation about this with a very prominent member of the Yale Law School faculty. I mentioned that in my lifetime I don’t think that Yale has ever hired a “right of center” constitutional law scholar. (Note: not my career, my lifetime; please note that Bork was hired before my lifetime started, and as antitrust scholar; also, there was a specific reason that I mentioned constitutional law, but it’s tangential to the story). The response was in part, and I quote, “I simply don’t know what right of center means if it does not include [Akhil] Amar.”

Now, Amar calls himself a “liberal,” 33 Am. Crim. L. Rev. 1193, 1196 (1996), is consistently referred to in the media a “liberal” or “liberal Democrat” without apparent objection from him, and has views on Constitutional Law which, despite some heterodoxy, are still ultimately overall left of center, and clearly so. Yet my correspondent not only argued that Amar is “right of center,” but suggested that he can’t imagine why anyone would think otherwise.

The point being this: Most left-of-center law professors think of themselves as being tolerant and open-minded, and wouldn’t consciously discriminate against a faculty candidate because of ideological differences. But if you’re a liberal considering conservative candidates (and vice versa), as Jonathan suggests you might have to make a conscious effort to overcome a natural skepticism of the quality of someone’s ideas when their worldview is contrary to yours. And you also may have to make an effort to overcome the blocking tactics of the minority of your colleagues who would and do, in fact, intentionally discriminate. How much of an effort you will make will likely in part depend on the extent to which you think, as an empirical matter, you need to make such an effort for the process to be fair. And if you’re sitting around thinking that you and your colleagues have successfully overcome your natural biases because you hired someone like Akhil Amar, you are likely to make less of an effort than if you think to yourself, “you know, this faculty hasn’t hired a right-of-center constitutional law scholar in over forty-five years, I wonder if we’ve been treating such candidates fairly?”

This is not, by the way, an attempt to pick on Yale specifically. My correspondent told me that Yale has in fact had “flirtations” with individuals with far clearer “right of center” credentials than Amar has, and that the lack of interest has come from the other side. But I think I’m illustrating a more general point here.

In light of my post on Steven Hayward’s appointment at the University of Colorado, I thought it might be worthwhile re-posting some earlier thoughts on the general subject.  Here are some thoughts from a post of mine from 2003, prompted by this David Brooks column.

“LONELY CAMPUS VOICES”: Today’s David Brooks column struck a chord. When I was an undergraduate at Yale, I had several long discussions with my senior essay advisor about whether to pursue my PhD. My advisor, who was himself quite liberal, cautioned against it, largely because of my emerging, right-of-center political views. As he described it, succeeding in the liberal arts academy is tough enough as it is without the added burden of holding unpopular views. To illustrate the risk, he noted that one of his colleagues on the graduate admissions committee explicitly blackballed each and every candidate who had ever received financial support (scholarships, fellowships, etc.) from the John M. Olin Foundation because, his colleague insisted, the Olin Foundation only funded people who thought like they did, and Yale did not want any graduate students who thought that way. If I truly wanted to be an academic, he counseled, I was better off going to law school. While he didn’t know much about the politics of the legal academy, a law degree would provide a better safety net than a history PhD. In the end, that’s what I did.

My experience in the academy further confirms Brooks’ account. Most of the hostility faced by conservatives (and libertarians) is not explicit, and often not conscious or deliberate. In many cases, the subject matter and methodology of conservative scholarship is simply of no interest to those on the left (and probably vice-versa). At schools where there are no tenured conservatives, job candidates and junior professors may be left without a “champion” to help them navigate the process. The lack of right-of-center views at some schools may also make even moderate conservatives appear “kooky” or extreme. By the same token, it is clear to me that many conservatives in academia cry “wolf,” or seek to blame political opposition on their failure to succeed in a highly competitive environment. Contrary to what some believe, not every conservative’s failure to get tenure is the result of politics. Those that do succeed, however, will often work on faculties with few like-minded colleagues.

To conclude, I think the bias against conservatives is real (if overstated) in many parts of the academy, particularly the humanities. Nevertheless, careful and talented conservatives can succeed in the academy if they are willing to become “lonely voices.”

I would also endorse the arguments made by Professor Bainbridge here and here.

In sum, I think that the relative paucity of conservative and libertarian voices in the academy is the result of multiple factors.  Self-selection certainly plays a role, and (as David noted in this post) a completely neutral hiring process would be unlikely to produce anything resembling a “balance” of ideologies representing the public at large.   In addition to self-selection there is the problem that faculties tend to reproduce themselves, ideologically and otherwise.  This does not mean conscious bias is absent, but it’s hardly the only factor.

As for what to do, that’s the hard part.  I don’t think there need to be overt efforts to ensure the hiring of those with under-represented views.  There is no historical injustice to cure and no one has an entitlement to an academic job.  I also don’t believe all problems can (or even should) be solved.  Some cures are worse than the disease, and it would be disastrous were academic hiring subjected to governmental oversight (any more than it already is).  I also believe private educational institutions should be free to hire in line with their educational philosophies.  That said, I do think it is worthwhile to call out those who claim to be open-minded but do, in fact, discourage or discriminate against those with contrary views, even inadvertently.

I believe the academic environment is enriched by a range of voices and perspectives.  It’s difficult to teach students to be effective advocates without teaching them how to understand competing views and perspectives, and it’s hard to teach (let alone understand) competing views if one has little exposure or interaction with them.  I enjoy working in an environment in which there are many people with wildly different views of the world.  In fact, I often think it works to my advantage.  Insofar as there are more of “them” in my university and my field, I have a much better window into their approach to issues than they do to mine.  For this reason, I think it’s important to encourage a range of voices in the academy — and I hope I do my part toward that goal.  My lament is that, as judged by their actions, many self-proclaimed liberals don’t feel the same way.

[Note: the 2003 post above was partially lost in the archives, so I restored it with the help of the wayback machine.]

UPDATE: And speaking of intellectual diversity on campus, the Harvard Law School chapter of the Federalist Society will be hosting a conference on the subject next month.  The line-up of speakers is quite strong.  Details here.