Balkinization  

Monday, April 15, 2013

Reflections (I) on the Federalist Society conference on intellectual diversity

Mark Tushnet


Having participated in one session of the Federalist Society’s event on intellectual diversity in law schools (video here), I’ve been mulling over what I heard. (I was at only the opening session, nominally on whether there was a problem, though of course the premise of the rest of the event was that there was.) Here’s what I took away from it.

Remarkably, the other participants appear to believe that the market for legal education doesn’t work, and that students have to be paternalistically protected against the bad consequences of their choices. My comments were directed to the existence of a market across institutions. 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. It’s not at all clear to me that, given across-institution diversity, there’s a problem with the market in legal education. So, maybe the complaint isn't that there's not enough across-institution diversity. But, nothing that I heard addressed that question.

Another version of the analysis is that Harvard’s developed a product that sells quite well in the market. It's not clear that the (mere) fact that there are some consumers who would like to have available to them a product that has all the attributes of Harvard’s bundle other than its political leaning ought to be a matter of concern to Harvard or, indeed, anyone other than the consumer who would like to see a wider array of products on offer. (And, if anyone starts thinking about the analysis of reputation and alumni networks that might be associated with Sweatt v. Painter, I think the response is that Harvard is willing to sell its product to anyone without regard to her values.)

Yet a third version was embodied in my response to Steve Calabresi, who said that the real problem with a lack of intellectual diversity was that liberal students didn’t find their views challenged in the classroom by conservative professors. Both Jack Goldsmith and I had noted that we don’t really know the extent to which reported general political affiliations translate into bias in the classroom, but put that aside. Calabresi’s comment suggests that conservatives benefit from the asserted liberal bias in the classroom because they will find their views challenged (and so shouldn’t really complain about it) – and that the group that should be sponsoring the event is the American Constitution Society. The weirdness of that proposition suggests that the argument’s goine off the rails somewhere. I think it does when people worry about within-institution diversity without thinking about the implications of across-institution diversity.

This post is already too long, so I’ll save additional comments for one to follow soon.

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