E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Reflections (II) on the Federalist Society conference on intellectual diversity
Mark Tushnet
Here are three only loosely related additional observations
about the Federalist Society conference on intellectual diversity. The first
and second are a bit snarky, and make specific reference to my colleague and
co-panelist Jack Goldsmith, so I want to make it clear at the outset that my
remarks are NOT directed at him personally; I’m using “him” as an allusion to a
more general phenomenon.
1. Nick Rosenkranz’s post on the conference refers to Jack’s
“powerful comments on what it is like to be a right-leaning professor at
Harvard Law School.” To which my response is (again invoking the market): No
one’s forcing him to stay at Harvard. If there’s another law school that offers
him a package of attributes that’s more attractive (that is, if the net effect
of his isolation at Harvard is negative), go in peace. Indeed, as I understand
it another participant at the conference – Michael Stokes Paulsen – did exactly
that, and for pretty much the “right” reasons. (So, a couple of decades ago,
did Paul Bator.)
2. There’s a brief exchange between me and Jack that I want
to unpack. I asked Jack how long he’d been in the legal academy before he
arrived at Harvard. His answer: Roughly nine years. I then pointed to the
equivalent figure for me – thirty-three years – as a way of suggesting that
there have been other forms of political discrimination in the legal academy.
(No, I’m not resentful, really. Really.) Jack responds, clearly joking, that
his record was stronger than mine – and later (I think) someone in the audience
says something about a difference in our fields of specialization. Here I have
two responses: (a) Pick an N between 9 and 33, and find me a conservative not
teaching at a T14 law school whose record at N years was as good as mine, and
then I’ll start sympathizing with claims about political discrimination against
conservatives. (b) There are always “local” explanations for failures to hire –
typically, of the form, "We don’t need someone in that field right now,” where
the definition of the field is subject to quite a bit of manipulation – which provide an excuse for discrimination.
3. From my perspective, what’s striking about the political
spectrum in law schools is that it ranges from the center-left, with a handful
of outliers to the left, to the rather conservative right. It’s quite difficult
to find a legal scholar at a T14 school who is an unabashed European social
democrat or who thinks that having a thick social safety net is a matter of
social obligation and perhaps even constitutional duty, much more difficult than
it is to find an Ayn-Rand style libertarian. (Without I hope disclosing too
much, we had a presentation at a faculty workshop where the presenter used “varieties
of capitalism” as an explanatory variable; it was if – to appropriate a phrase
from Robert Paul Wolff – someone at a traditional Catholic school had said, “I
get the Father and the Son, but you have to give me a pass on the Holy Ghost,” offering
a way of thinking that was socially wildly inappropriate.) But, as Jim Lindgren’s
comments indicate, that’s not how things look to Federalist Society sorts,
where what to me is the center-left is incredibly radical leftism.