Toward Intellectual Diversity in Law School

The Federalist Society last Saturday sponsored a symposium at Yale Law School that discussed “Achieving Intellectual Diversity” on law school faculties.  On one of the panels, I said that as a student at Yale law 1977-1981 (with a year off to work for the Republican National Committee)  it was a good time to be in law school, in between the insanity of the sixties and early seventies, and before political correctness became so firmly entrenched.

But, I said, even then there were complaints that, with both Robert Bork and Ralph Winter on the faculty, there was “too much diversity” at Yale.

Here are the rest of my comments:

“Intellectual diversity is valuable not because there are “many truths”; to the contrary, there is only one truth.  And we want to find the truth, and intellectual diversity is important in this context because we don’t know precisely beforehand what the truth will turn out to be and competition in the marketplace of ideas helps us find the truth (like the adversary system itself in law). To quote my favorite progressive reformer, Oliver Cromwell:  ‘My brethren, I pray you to consider that you may be wrong.’

“Indeed, intellectual diversity is more important for the faculty than for the student body.  Let me describe briefly some ways that a faculty’s intellectual diversity might pay dividends in the practice of law.

“In the first place, it may ensure that a student ends up in the right area of practice.  You may decide that you want to be a prosecutor rather than a public defender, if you hear about what each does.

“Here’s another example of this:  When I was a student here, then-professor Robert Bork told me that, when he began law school, his ambition was to become a trusts and estates lawyer in Florida.  He wasn’t sure why.  But he was exposed to the study of ‘law and economics’ at the University of Chicago, and had Edward Levi as his first professor, and so his career ended up going in a very different direction.

“Now, I should acknowledge that there is a certain danger here:  You might decide that you don’t want to practice law at all.  After he finished lecturing his first-year Constitutional Law students on the Supreme Court’s jurisprudence for the Equal Protection Clause, Professor Bork confessed to his class what was a terrible realization to him, as a middle-aged man, namely that he had devoted his life to studying something that made no sense.  He urged us all to become dermatologists before it was too late.  The next semester, he urged his antitrust students all to become astronomers.  I’m not sure of the reason for the difference.

“There’s a happy ending, though:  Antitrust law now does make sense, because the courts finally listened to Robert Bork.  Maybe someday they will for the Equal Protection Clause, too.

“One other note about Robert Bork:  He team-taught a course in constitutional law here with Alexander Bickel.  What a wonderful course that must have been, and what a wonderful way to learn through the presentation of diverse viewpoints.  I would hope that more courses would be team-taught that way.

“Once the student graduates, exposure to different professorial viewpoints will improve the way he or she practices law.  When you think about it, what you do as a lawyer is try to persuade people of one thing or another, and you will do a better job persuading people if you understand them.  You need to understand how the other side thinks, and how your clients think — and of course how the judge or justices think.

“An example:  When I was in the Civil Rights Division at the Justice Department, we were going to file an amicus brief in a police brutality case that was before the Supreme Court.  The issue was whether you had to prove that the policeman acted with malice.  The liberal career lawyers in the Division wanted to use a ‘substantive due process’ argument.  I pointed out to them that most of the justices did not really like the substantive due process approach, and that besides we had a straightforward textual argument — which those justices would like — that the Fourth Amendment says nothing about malice, but prohibits ‘unreasonable searches and seizures,’ whether malicious or not.  So we argued the case that way, and we won.

“Knowing about different viewpoints will also make you a better mentor, and will make you a better judge (or professor) if that’s where you end up.  You will do a better job at finding the truth.

“Let me close with a couple of caveats. First, even if your faculty is totally left-wing and un-diverse, don’t despair.  The Federalist Society has on its website an excellent bibliography of conservative and libertarian books and law review articles that discuss other ways of looking at the law.  You can use these sources to push back against these professors, which is an important thing to do.  When you do that in class, you yourself will be providing some intellectual diversity for your classmates.

Second, of course it would be wrong to hire incompetent professors simply because they would provide more intellectual diversity.  But simple nondiscrimination will in all likelihood provide intellectual diversity, since (alas) better qualified conservatives are often not hired precisely because they are conservative.”

Two addenda:   (1) Several speakers at the symposium had already noted a just-published piece in The New Yorker re-explaining that social psychology academia is biased against hiring conservatives.   (2) Another panelist, James Phillips, shared with me this comment that he received from a former chapter president of the American Constitution Society (the liberal counterpart to the Federalist Society) at Berkeley Law School (of all places):

Attending a law school that is not ideologically diverse substantially undermines the value of the education.  There are myriad divides in the law over very important issues that we as lawyers will face when we enter the legal field as professionals.  When we only bring up one side to caricature and deride it, a few things happen.  First, the very few students who are ideologically predisposed to those sides feel marginalized, thereby undermining their education.  More importantly, by treating those opinions as such, we are not seriously evaluating them and will be extremely ill-equipped to grapple with them in the real world.  I am liberal but hoped to be able to engage with conservative ideas in law school and have been deeply disappointed with the perfunctory and cavalier attitude with which we assess conservative ideas at my law school.  I think we will be much worse as practitioners, and ironically, will be much less capable of advocating for liberal ideas because of our failure to seriously grapple with conservatism in our law school climate.