Finally, congratulations to GMUSL alum and current George Mason visiting assistant professor Jeremy Kidd, who has accepted a tenure-track appointment at Mercer Law School. I think this is the first time George Mason has placed two alums in tenure-track academic posts in the same year.

No doubt there will be many analyses and appreciations of Larry’s outstanding contributions to scholarship over the coming days and weeks. My personal favorite among his many excellent works is his recent book The Law Market (coauthored with Erin O’Hara), which is perhaps the best recent book on the potential benefits of competition between state legal systems in American federalism. Larry is also well-known in the legal blogosphere for his insightful posts at Truth on the Market, where he wrote an excellent post on ABA accreditation of law schools just a few days ago.

I have known Larry professionally for several years, and he was always a courteous and helpful colleague, including for much younger and lesser-known scholars. I saw him give a workshop presentation just a couple months ago, where he was, as always, in excellent form. His unexpected passing comes as a terrible shock. He will be greatly missed by his family, friends, and colleagues.

UPDATE: The official memorial notice from the University of Illinois is available here.

[A new law school] needs the seal of approval of the American Bar Association, the government-anointed regulator of law schools.

That means complying with a long list of standards that shape the composition of the faculty, the library and dozens of other particulars. The basic blueprint was established by elite institutions more than a century ago, and according to critics, it all but prohibits the law-school equivalent of the Honda Civic — a low-cost model that delivers.

Instead, virtually every one of the country’s 200 A.B.A.-accredited schools, from the lowliest to the most prestigious, has to build a Cadillac, or at least come close. Duncan’s library costs $750,000 a year to maintain — a bargain when compared with competitors….

The lack of affordable law school options, scholars say, helps explain why so many Americans don’t hire lawyers.

“People like to say there are too many lawyers,” says Prof. Andrew Morriss of the University of Alabama School of Law. “There are too many lawyers who charge $300 an hour. There aren’t too many lawyers who will handle a divorce at a reasonable rate, or handle a bankruptcy at a reasonable rate. But there is no way to be that lawyer and service $150,000 worth of debt.”

This helps explain a paradox: the United States churns out roughly 45,000 lawyers a year, but survey after survey finds enormous unmet need for legal services, particularly in low- and middle-income communities…..

It’s not just that many lawyers are prohibitively expensive. It is that when it comes to legal expertise, there are not a lot of cheaper alternatives — not in the United States, anyway. Britain, on the other hand, has a long menu of options, including a tier of professionals called legal executives, who are licensed after getting the equivalent of a community college degree. Counsel is also

available from nonlawyers at a variety of nonprofits. And you can buy a simple divorce over the Internet for a set fee, or pay for customized legal advice, online or by phone.

“In the U.S., people and businesses have only one place to go for all their legal help — lawyers who graduated from an A.B.A.-approved law school and who follow mostly A.B.A. rules about how they run their practice,” says Gillian Hadfield, a professor at the Gould School of Law of the University of Southern California. “Everyone else who offers legal advice is engaged in the unauthorized practice of law….”

Consider business schools, [Emory law professor] George Shepherd says.

If your dream is to work at Goldman Sachs, “you can go to Harvard Business School and spend a couple hundred thousand dollars, in tuition and forgone earnings,” he says. “If you just want to move up the management ranks at Macy’s, you can take part-time evening classes and spend $10,000 for a degree. The part-time school may not be accredited, but this gets to the difference — state law says you can become an attorney only if you attend an accredited law school. There’s no law that says you need to attend an accredited business school in order to practice business.”

Professor Shepherd says aspiring lawyers should have the same choices as aspiring executives and managers….

A result is an expensive quandary for potential clients, says Professor Morriss of the University of Alabama. “Maybe you need a plumber,” he says. “But you have to hire a brain surgeon.”

These are not new arguments. Critics of the ABA accreditation system have making the same points for years. Milton Friedman did so as far back as the 1950s. I myself did called for the abolition of the ABA’s legal role in the process in this 2006 post:

To my mind, the problem goes beyond the shortcomings of specific ABA standards. The real mistake is allowing an organization with a blatant conflict of interest to take over the accreditation role in the first place. As an interest group representing lawyers, the ABA has an obvious stake in limiting entry into the profession so as to decrease the competition faced by its members. One way of doing so is by restricting the number of accredited law schools, at least in the vast majority of states that require all or most aspiring lawyers to attend an ABA-accredited school in order to take the bar exam. We would not allow an organization run by Chrysler, GM, and Ford to set regulatory standards determining who has the right to sell cars in the United States. Requiring ABA accreditation for law schools is the exact equivalent in our industry.

Although the New York Times article breaks little new ground, it has great value in bringing this issue to a wider audience.

I do have one possible quibble with the article. Segal implies (though he does not say so directly) that all or most existing law schools support the ABA accreditation system. This is far from universally true. In my experience, many administrators and faculty at relatively highly ranked schools (say the top sixty or seventy) either oppose the system outright, or at least would not object to liberalization of the rules. These schools don’t benefit much from excluding marginal new competitors, and the ABA accreditation process saddles them with unwanted expenses and administrative burdens. Harvard and Yale (or, for that matter, George Washington or George Mason) are not likely to lose students and faculty to startup law schools, even if the latter have lower tuition. By contrast, low-ranked schools (e.g. – the bottom 30-40%) tend to support ABA accreditation because they are the ones most likely to be threatened by new competition. Being a member of the ABA-sponsored cartel is often their most valuable economic asset, and they are loath to give it up.

I’m not suggesting that the higher-ranked schools are completely blameless. If more of their faculty and administrators were to speak out against the status quo, we might see greater pressure for change. Hopefully, Segal’s article will help generate a broader debate on the issue.

The debate pits James Ho, counsel for the University of Texas in the case, and Loren Alikhan, counsel for the League of United Latin American Citizens (arguing for the University’s position) against Gail Heriot of the US Commission on Civil Rights and Roger Clegg of the Center for Equal Opportunity (arguing that the university’s plan is unconstitutional).

I previously blogged about Fisher here and here.

Interestingly, I have some connections to both sides in this debate. My wife is Gail Heriot’s special assistant/counsel at the US Commission on Civil Rights. Jim Ho (who later went on to become Texas’ state solicitor general) clerked for Fifth Circuit Judge Jerry E. Smith two years before I did, and interviewed me for the job before I was hired.

While some news reports indicate that discrimination against women on the basis of sex in college admissions is increasingly common, there has been relatively little public discussion about it—especially compared to the much more heated public debate concerning race-based affirmative action. Not surprisingly, therefore, there have been few attempts to study the extent of the problem systematically….

Multiple news reports indicate that some colleges and universities, both public and private, have what they regard as “too many” women applicants and are therefore discriminating in favor of men—largely because more women than men apply to college and their academic credentials are in some ways better. Several colleges have more or less openly admitted to discriminating against women – including the University of Richmond (a private institution) and the College of William and Mary (a public institution). Others—including Southwestern University (Texas), Knox College (Illinois), Brandeis University (Massachusetts), Boston University (also Massachusetts), and Pomona College (California)—shy away from admitting directly that they are discriminating, but admit that maintaining an optimal gender balance by non-discriminatory means is difficult….

Sex discrimination in admissions at public universities is illegal under Title IX of the Education Amendments of 1972. But under federal law, it is perfectly legal for private institutions to engage in sex discrimination in admissions—though once both sexes are admitted, neither may be discriminated against….

Perhaps the most attention-getting piece on this topic was a 2006 New York Times op-ed by Jennifer Delahunty Britz, an admissions officer at Kenyon College, in which she admitted that her office often gave preferential treatment to men. Some admissions insiders wrote in response to Delahunty Britz’s piece that these preferences were quite common—what was shocking was only Delahunty Britz’s candor in airing this information publicly. Inside Higher Ed noted that “[w]hile few admissions officers wanted to talk publicly about the column, the private reaction was a mix of ‘of course male applicants get some help’ along with ‘did she have to share that information with the world?’” Several years later, after the wave of chatter over Delahunty Britz’s piece had died down, Columbia University law professor Ted Shaw referred to such discrimination as an “open secret.”
[footnotes omitted].

The article also discusses the interconnections between admissions preferences for men and Title IX rules for college sports teams (the latter may have the unintended effect of incentivizing the former by making it harder for colleges to entice male students through increasing the number of men’s sports teams). Alison previously wrote about Title IX and sports here.

This issue is actually one of the rare points of political disagreement in the Somin household. I am less hostile than Alison to gender-balancing admissions policies that seek to keep the sex ratio (very roughly) even for the purpose of improving the social environment on campus. The problem of gender imbalance may be more serious at some institutions than others, and I don’t think it can justify very large gender preferences anywhere. As Gail and Alison point out, it’s a bad idea for colleges to admit “mismatched” male students whose academic skills are vastly inferior to those of the other students at the same institution. But, in some situations, I think there is a case for modest admissions preferences for the less numerous gender on campus. Some women students themselves may be dissatisfied with life on a campus that is, say, 70% female, and the same goes for male students at an overwhelmingly male institution. Obviously, other students probably couldn’t care less about the sex ratio at their university. But I don’t advocate that all universities with a gender imbalance should resort to admissions preferences to deal with it. I merely want the option to be legally available, at least at private institutions. Be that as it may, I do agree with Alison that such policies at public institutions are legally dubious under Title IX.

Eight minutes into the lecture, about 5 to 10 percent of the class stood up and quietly left. Some other students who had taken the class in previous years then walked into the room as a counterprotest. I have been told that at least one of the students who walked out sneaked back in later: he wanted to support the protest but didn’t want to miss the lecture. After a few minutes, I resumed the class as usual.

So how do I feel about it?

My first reaction was nostalgia. I went to college in the late 1970s, when the memory of the Vietnam War was still fresh and student activism was more common. Today’s college students tend to be more focused on polishing their résumés than on campaigning for social reform. I applaud the protesters for thinking beyond their own parochial concerns and trying to make society a better place for everyone.

But my second reaction was sadness at how poorly informed the Harvard protesters seemed to be. As with much of the Occupy movement across the country, their complaints seemed to me to be a grab bag of anti-establishment platitudes without much hard-headed analysis or clear policy prescriptions. Ironically, the topic of the lecture that the protesters chose to boycott was economic inequality, including a discussion of recent trends and their causes.

Our own Todd Zywicki commented on the walkout here.

[Note: Link to Mankiw column fixed.]

The Supreme Court faces a discomfiting decision. If it chooses, as it should, to hear a case concerning racial preferences in admissions at the University of Texas, the court will confront evidence of its complicity in harming the supposed beneficiaries of preferences the court has enabled and encouraged.

In the 1978 Bakke case concerning preferences in a medical school’s admissions, Justice Lewis Powell, the swing vote on a fractured court, wrote that institutions of higher education have a First Amendment right — academic freedom — to use race as one “plus” factor when shaping student bodies to achieve viewpoint diversity. Thus began the “educational benefits” exception to the Constitution’s guarantee of equal protection of the laws.

But benefits to whom? For 33 years, the court has been entangled in a thicket of preferences that are not remedial and hence not temporary. Preferences as recompense for past discrimination must eventually become implausible, but the diversity rationale for preferences never expires.

Liberals would never stoop to stereotyping, but they say minorities necessarily make distinctive — stereotypical? — contributions to viewpoint diversity, conferring benefits on campus culture forever….

But what if many of the minorities used in this process are injured by it? Abundant research says they are, as two amicus curiae briefs demonstrate in urging the court to take the Texas case.

The details of the Texas policies are less important than what social science says about the likely consequences of such policies. A brief submitted by UCLA law professor Richard Sander and legal analyst Stuart Taylor argues that voluminous research refutes the legal premise for such racial classifications: They benefit relatively powerless minorities.

“Academic mismatch” causes many students who are admitted under a substantial preference based on race, but who possess weaker academic skills, to fall behind….

A second brief, submitted by three members of the U.S. Commission on Civil Rights (Gail Heriot, Peter Kirsanow and Todd Gaziano), argues that racial preferences in law school admissions mean fewer black lawyers than there would be without preferences that bring law students into elite academic settings where their credentials put them in the bottom of their classes. A similar dynamic is reducing the number of minority scientists and engineers than there would be under race-neutral admissions policies.

There are fewer minorities entering high-prestige careers than there would be if preferences were not placing many talented minority students in inappropriate, and discouraging, academic situations: “Many would be honor students elsewhere. But they are subtly being made to feel as if they are less talented than they really are.” This is particularly so regarding science and engineering….

In six devastating words, the Heriot-Kirsanow-Gaziano brief distills the case against the “diversity” rationale for racial preferences: “Minority students are not public utilities.”

The possibility that many minority students are actually harmed by “diversity”-based affirmative action is a further point of tension between the diversity rationale for racial preferences and the compensatory justice rationale, a subject I have emphasized in many previous posts (e.g. here, here, here, and here). I previously blogged about Fisher v. Texas in this post. Co-blogger David Bernstein commented here. If the goal of racial preferences is promoting “diversity,” then it does not matter much whether minority students are potentially harmed by them. If, on the other hand, the goal is compensating groups victimized by major historic injustices, it matters a great deal.

NOTE: As I have noted in my previous post on Fisher, I clerked for Fifth Circuit Judge Jerry E. Smith, author of Hopwood v. Texas, the 1996 decision striking down an affirmative action program at the University of Texas Law School that Grutter v. Bollinger and Fisher have superseded. Judge Smith wrote Hopwood several years before I clerked for him.

In addition, my wife is a special assistant/counsel for Gail Heriot, one of the coauthors of the brief by the three members of the US Commission on Civil Rights, which Will references. I should emphasize, however, that I have espoused the same views on affirmative action as I do today since long before she took that job, and indeed since before we met, as my earliest posts on the subject show. For about a decade now, I have believed that government-sponsored racial preferences might, at least in principle, be justified for purposes of compensatory justice, but not for diversity purposes. I am, however, pessimistic about the ability of government to institute compensatory justice preferences that are simultaneously equitable and effective in accomplishing their objectives.

UPDATE: The Sander-Taylor amicus brief is available here, and the brief of the three USCCR commissioners here.

UPDATE #2: David Schaub strangely accuses me of advocating a “one-size government mandate” banning affirmative action. This is strange because I have always taken the view that “private universities should have the legal right to practice as much affirmative action as they want.” I did not discuss this aspect of the issue in this post, since Fisher is a case about government-sponsored affirmative action at state universities. Schaub suggests that public and private universities are essentially the same. In some respects they are. But state universities are still public property and using public property for the purpose of promoting racial preferences raises moral, political, and constitutional issues that differ from those at private institutions. Similarly, it is not inconsistent to support a legal regime under which private universities, but not public ones can promote a particular religion. Even with respect to state institutions, I do not believe that affirmative action is categorically unconstitutional. But there is good reason for courts to view it with suspicion and subject it to tight scrutiny.

Schaub makes a more defensible point in claiming that the critique of “mismatch” is paternalistic. Mismatch would be less of a problem if universities were more forthcoming in telling affirmative action admittees the risks they run. But most are not. Moreover, when it comes to public universities, concern about mismatch is not just a concern about the students who get preferences. It’s also a matter of wasting public funds on students who are likely to perform very poorly at the institutions to which they are admitted, whereas they might have done better at schools more in line with their qualification levels.

Finally, Schaub suggests that mismatch concerns aren’t raised in nonracial contexts, such as legacy preferences. I’m no fan of legacy preferences. But they rarely involve academic qualifications gaps anywhere near as large as those in some affirmative action programs.

For more on the article, see these comments from Matt Bodie, Brian Leiter, Jason Mazzone, and Larry Ribstein. As Ribstein notes, if one really wants to understand what’s going in on legal education, the good and the bad, one’s better off reading legal bloggers than the NYT.

UPDATE: Leiter has a fuller response to the article here, and Orin comments above.

It is no surprise that grades are lower in math and science, where the answers are clear-cut and there are no bonus points for flair. Professors also say they are strict because science and engineering courses build on one another, and a student who fails to absorb the key lessons in one class will flounder in the next.

After studying nearly a decade of transcripts at one college, Kevin Rask, a professor at Wake Forest University, concluded last year that the grades in the introductory math and science classes were among the lowest on campus. The chemistry department gave the lowest grades over all, averaging 2.78 out of 4, followed by mathematics at 2.90. Education, language and English courses had the highest averages, ranging from 3.33 to 3.36.

Ben Ost, a doctoral student at Cornell, found in a similar study that STEM students are both “pulled away” by high grades in their courses in other fields and “pushed out” by lower grades in their majors.

If taking math, science and engineering courses requires students to sacrifice their GPAs and class standing, it should be no surprise that many choose other courses of study.

Those who argue for diversity in higher education implicitly envision a school that has a “critical mass” of whites, blacks, Jews, Hispanics, and other groups. Such a university may well be internally diverse (at least in an ethnic sense), but if every school pursues this ideal, than they will all look more or less alike on the ethnic dimension, or whatever other criterion is chosen as the focus of diversity promotion. There will be diversity within institutions, but very little diversity across institutions.

By contrast, if Brandeis continues to be a distinctively Jewish school, Brigham Young continues to be a distinctively Mormon school, and so on, these schools can make unique contributions to American higher education that might otherwise be lost. Although Brandeis and BYU may not be internally diverse, they definitely add to the overall diversity of the American higher education system in two important ways. First, they give students who want to attend a distinctively Jewish or Mormon school an option they would not have if all schools stick to the internal diversity model. Second, faculty at a distinctively Jewish or Mormon school might well pursue research on subjects that are ignored or at least deemphasized at other types of institutions. Brandeis’ traditional focus on hiring faculty who study the history of Judaism and the Jewish people is an example of the latter.

To be sure, a school built around a particular group identity will have weaknesses as well as strengths. But the weaknesses are offset by the fact that there will always be hundreds of other schools that do not try to foster a distinctive group identity. Students and faculty who don’t want to be associated with a distinctively Jewish school have plenty of options, even if they can’t attend Brandeis. The question is not whether there should be a large number of internally diverse schools, but whether all schools should be that way.

What I said about diversity across schools also applies to diversity between student groups within a given school. By having a distinctive Jewish student group, black student group, Christian group, and so on, diversity across groups is enhanced even if these groups are not internally diverse (indeed, sometimes precisely because they aren’t). Obviously, internally homogenous student groups have limitations. But those are to some extent offset by the fact that there are usually many other student groups available, including many that are not focused on a specific ethnic or religious identity.

For reasons I have indicated in the past (e.g. here, here and here), I have various reservations about the diversity-promoting affirmative action policies currently practiced by most universities. But that does not undermine the point that there are real benefits to having a wide range of student groups, including some which are internally homogeneous.

Those were the days when you just had to write one article [to receive tenure], and actually, I was the first person to whom Harvard ever applied the requirement that you have to write at least one. Erwin Griswold, who had been the Dean of Harvard Law School, had the theory that he knew which people were geniuses. If he approved of them, they would certainly do good work over time, and therefore they had to write nothing. After a while, however, people realized that was not such a wise idea, because someone has to push you to write something so that you see that you can do it. And probably everybody here has gone through that stage, and that’s not a pleasant stage. “How can I possibly write an article?” Everyone goes through that. Oh, they all think that I can, but they do not really understand.

Well, there it was, and moreover, they had a very exalted idea of themselves at Harvard and so it had to be a pretty good article. And I didn’t know a thing about copyright—although that’s exactly the kind of thought I couldn’t dwell on, because it would lead to the temptation to give up.

. . . . One of the less pleasant days of my life was after I’d handed [Dean] Derek Bok my 200-page manuscript to give to the Appointments Committee. He came back and said, “You know, when you write something”—and I didn’t like the tone of his voice—“sometimes it’s worth going over it again before handing it in. Marshal your arguments,” he said, “and use the most interesting points, but do not put in all the less interesting ones.” And that was very good advice. So what ended up being published as The Uneasy Case for Copyright was the expurgated version of something that had all kinds of rambling in it.

The world in which Harvard raised tenure standards by requiring law professors to write a single article to receive life tenure — and in which the author saw writing the one article as an enormous challenge — is hard to image today. These days, candidates generally need to have written at least one major article just to get a tenure-track teaching job at any school.

Achcar even manages to find excuses for the dissemination [in the Arab world] of Hitler’s textbook for the Holocaust, the so-called Protocols of the Elders of Zion. “There is a qualitative difference,” he claims, “between a delusive, anti-Semitic approach that believes, or seeks to make others believe, that the leaders of the Jews of the ‘Jewish race’ are conspiring against the rest of the world, and an equally delusive but not racist [!!!-DB] approach that seeks consolation by mobilizing a conspiracy theory [that Jewish leaders are conspiring against the rest of the world!--DB] to explain Zionist successes.” And that’s not all: he even deplores the failure of other authors to “make the necessary distinction between the anti-Semitic and anti-Zionist reading of the Russian forgery.”

Given that the Protocols constantly talk not about Zionists, but about “Jewry,” which, the Protocols claim, is seeking to take control of the world, Achcar’s attempt to defend Islamist propagators of the Protocols from the charge of antisemitism is truly bizarre. One might just as well recommend an “anti-Zionist reading” of Adolf Hitler’s Mein Kampf, another book with a wide circulation in the Middle East, and one which has an explicitly anti-Zionist orientation.

One could easily dismiss Achcar’s book as typical fringe claptrap, but for the fact that Kuntzel and Reade report that it’s being taken seriously in mainstream circles, in part because, as they acknowledge, there is some serious historical work mixed in with the vociferous efforts to justify, minimize, and sanitize anti-Semitism when the perpetrators are Achcar’s ideological fellow-travelers.

Nope. Blogger Adam Holland:

I had trouble believing that a distinguished professor at one of the world’s greatest universities would link himself to a hatemonger like Atzmon. So I sent Professor Mearsheimer an email quoting the blurb and asking him to verify it’s accuracy. I also gave him an opportunity to amend it or add to it.

But Mearsheimer didn’t take the opportunity to save what’s left of his reputation. He wrote back: “The blurb below is the one I wrote for ‘The Wandering Who’ and I have no reason to amend it or embellish it, as it accurately reflects my view of the book.”

The great advantage that I had was no strong mentor, so I went off at my own pace in my own direction. The combination of philosophy, ancient law, and some economics that I picked up along the way set the stage for my work.

If asked to name my comparative advantage, it was a combination of curiosity and superficiality, both which led me to teach pretty much anything. One of my early University of Southern California colleagues, the late Gary Bellow, cautioned me against this approach, saying that “no utility infielder ever made it into the Hall of Fame.”

I disregarded his advice, and have taught a bewildering array of courses on a lick and a promise, nothing more. The challenge of integrating new information to old theories was I think the real spark for what I did.

Student misunderstands, and launches attack on professor for being anti-Semitic. When the context was explained to her, she refused to relent: “The words, ‘Jews should be sterilized’ still came out of his mouth, so regardless of the context I still think that’s pretty serious.” (Anyone who says “Jehovah” will get stoned!)

Professor: I’m very troubled because “I’m very proud of the fact that in the history of my teaching career I’ve stood for the best values of what constitutes a meaningful human community.”

So the politically correct professor warns his students in advance that he finds certain opinions “unacceptable” and “dangerous”. (The fact that he used a particularly egregious example doesn’t make up for the fact that he shouldn’t be intimidating his students by encouraging self-censorship the first day of class. [Not to mention that in a free society everyone is, in fact, entitled to his opinion, though not to express it in all circumstances.]) Politically correct student decides that the professor wasn’t being sensitive enough, and that the example he used was “unacceptable” and “dangerous.” Irony, rough justice, or something else?

H/T Virginia Postrel via Facebook.

Today, it is more possible than ever for professors at lower-ranking schools to have a big influence. For example, 2009 data shows that even the then-untenured bloggers here at the VC had citation counts comparable to those of tenured law professors at top ten-ranked schools, (and none of us teach at schools ranked in the top 15). The same can be said for other VCers teaching outside the top fifteen, such as David Bernstein, David Post, and Todd Zywicki. And the VC itself is an example of how professors at lower-ranked schools can have an impact on public debate, as well as academic discourse.

Modern technology makes it easier for scholars at lesser-known schools to get their work noticed. Thanks to Westlaw, Lexis, and SSRN, well as good old e-mail, you can easily make your work available to interested colleagues even if you aren’t being invited to conferences and workshops at the top 15 schools. Four VCers who don’t teach at top 15 schools are among the top 150 lawprofs in the world in lifetime SSRN downloads, led by Orin Kerr (No. 13), and Todd Zywicki (No. 71). There are numerous non-VCers from non-top 15 schools who rank that high as well. And once you build up enough of a reputation by these other means, the conference and workshop invitations will start to come in too. The internet and the blogosphere also make it easier for non-top 15 professors to influence public debate, if they are so inclined.

There’s no denying that professors at the best-known schools have a real advantage. It’s certainly easier to attract attention to your work if you’re a professor at Yale than if you’re at Podunk U (or George Mason, for that matter). The big name school gives you instant credibility that a lower-ranked school doesn’t. But if you do enough good work and use modern technology to promote it, you can have an impact wherever you are.

UPDATE: Eric Muller writes that “Ilya Somin is of course right that those of us on law faculties below the “Top Fifteen” can do things that have a big impact. But he’s only half right, because he’s only talking about the impact we can have on each other (and on our citation practices).” That’s not entirely true. I also mentioned the impact lawprofs can have on public debate outside the academy. Eric goes on to note that professors at any level can also have an impact on their students and local communities. That’s clearly true. But I don’t think anyone doubts it, which is why I didn’t mention it. What is more debatable is whether professors at lower-ranked schools can influence academic and public debate in their fields.

Some of these professors give sound advice. But the very fact that these folks wound up at the very top schools means that their experiences were exceptional, and they may not have a great sense of the overall market. In addition, for obvious reasons professors at these schools are inclined to think that the market is much more of a meritocracy than it actually is (which isn’t to say that merit doesn’t play a huge role in hiring, just that many other factors also play a role; it’s not that the top schools don’t hire meritorious candidates, it’s that meritorious candidates don’t always get hired by the top schools, or, in some cases, get any jobs at all).

Here are a few examples of terrible advice that I’ve heard students get from their references at top ten law schools:

(1) Go on the job market directly out of your clerkship, with no practical legal experience (and no Ph.D.) because it will signal how serious you are about academia. (This may have worked in the old days, but ONLY if you had a Supreme Court clerkship, which the individual in question did not.)

(2) Don’t bother going into the legal academy unless you can get a job at a top fifteen law school, otherwise you are better off working at a law firm; no one pays attention to what people at lower-ranked law schools have to say, so you will just get frustrated if you wind up at one of them. (Actually, being a law professor at any law school with a good academic environment is one of the best jobs in the world; people do move up; and people do pay attention to good scholarship emanating from outside the top 15).

(3) Prominently display your (otherwise irrelevant) ideological credentials (in this case, officership in a Federalist Society student chapter) on your teaching applications. (Why? Why? Why?)

(4) Sending out a law review article? Start with the top 20 law reviews, and see what happens. (That works if you’re teaching at Harvard or Yale, not if you aren’t even a professor yet.)

(5) Attended a lower-ranked school first year of law school, and then transferred? If anyone asks about it, be dismissive of your original school, to show that you always knew you were better than that. (Any committee you interview with will have at least one member who has friends at that school and will be insulted for them, plus word will get back to your original school where you will have now lost your friends.)

I could go on. But the basic point is, you should double-check any advice you get from your elite-law-school references with professors teaching at less lofty schools, especially ones who have served on appointments committees. Even if you only have a passing acquaintance with such individuals, they are usually quite willing to spend a few minutes to help out future academics.

I am sometimes presented with the following criticism: “Your rhetorical style won’t persuade anyone who doesn’t already agree with you.” That is no doubt true, but, as we’ve just remarked, it is quite rare to persuade anyone by a careful, reasoned argument–indeed, so rare, that I don’t see it as worth the effort to try to do so on a blog….

Nevertheless, since I started it, I suppose I should respond. (And at least I got a laugh out of being called an ideologue by the to-the-left-of-Noam-Chomsky Brian Leiter.)

The issue at controversy is my original claim in a brief comment to this blog post on the pseudo-scientific nature of Marxism, that Freud’s “work (or at least the vast majority of it) can’t stand up to the scientific method,” to which Leiter responded that my claim is “wholly false.”

It’s rather well-established that Freud’s work generally didn’t follow the scientific method, e.g., Freud did not reach his conclusions via testing, replication, and other indicia of scientific inquiry. Moreover, Freud’s followers for decades argued that his work shouldn’t be subject to empirical testing. One could argue that Freud’s theories were still better than ones preceded it (though my understanding is that the triumph of Freudian theory extinguished some other promising lines of research), but the hostility of Freudians to scientific methodologies then retarded further progress in psychiatry for decades.

Leiter instead argues that some of Freud’s “theory of the mind” has recently been empirically validated by OTHERS who did use the scientific method. If all Leiter is arguing that not everything Freud wrote turned out to be false, he won’t get any argument from me [though that's not the same as showing the most, or even much, of Freud's work has been empirically validated. On reflection, any such debate would involve some difficult definitional boundaries: what level of generality are we talking about (e.g., who would dispute that the pursuit of sex is a important motivating factor in human affairs?); how much weight do you give to different aspects of Freud's work to define "much"?; What if a particular conclusion was correct, but the rationale was wrong? The one article Leiter cites in support of the scientific validity of Freudian theory actually acknowledges, in the abstract no less, that while modern Freudians build on Freud's genuine insights, Freud's "version of psychodynamic theory" is "archaic," and that most Freudian clinicians consider it "obsolete".]

But if Leiter is arguing that Freud’s work was itself scientific that’s another story. There’s no contradiction between having great insights into human nature–great philosophers, authors, religious thinkers, etc., have had them–and not following, or purporting to follow, the scientific method.

For some bizarre and unexplained reason, Leiter seems to think that my beef with Freud is ideological, as if acknowledging what he calls the “scientific status” of Freud’s theories would somehow conflict with my belief in … what exactly? Perhaps he should instead note that I’ve been writing about junk science–left, right, and (mostly) otherwise–for over twenty years.

One might also give some thought to the many homosexuals, schizophrenics, victims of sexual abuse, and others who sought counsel from Freudian analysts, only to be fed nonsense about their mothers, accused of fantasizing, and so on. Leiter hasn’t acknowledged this, but perhaps he could withhold some of his vitriol from me, and spare some sympathy for these victims of pseudo-science–assuming, of course, that he agrees that they were such.

Indiviglio comments:

This chart looks like a mistake, but it’s correct. Student loan debt has grown by 511% over this period. In the first quarter of 1999, just $90 billion in student loans were outstanding. As of the second quarter of 2011, that balance had ballooned to $550 billion.

The chart above is striking for another reason. See that blue line for all other debt but student loans? This wasn’t just any average period in history for household debt. This period included the inflation of a housing bubble so gigantic that it caused the financial sector to collapse and led to the worst recession since the Great Depression. But that other debt growth? It’s dwarfed by student loan growth

It should be apparent that this trend can’t continue — and won’t.  The only question is what will cause it to change.

UPDATE: Paul Caron rounds up coverage and background here.

FURTHER UPDATE: Brian Leiter comments quite critically here.

THIRD UPDATE: A reminder that Campos and Leiter have clashed before.

FOURTH UPDATE: The comments of Paul Horwitz on this affair are much worth reading.

Trying to figure out what is happening at Widener is tricky because most of us don’t know the key players. Along those lines, I thought readers might appreciate reading a perspective about the situation from a recently-departed Widener faculty member, Professor Stephen Henderson, who recently left Widener to accept a position at the University of Oklahoma Law School. It was posted earlier today to a law-professor listserv, CRIMPROF, and I am reprinting it with his permission:

I just left Widener after spending the initial eight years of my career there. I was looking at OU before the Connell situation broke, but it made what would have been a difficult choice (there are some very good people at Widener, and my family loved living in the Delaware Valley) a very easy one. Larry is a good man and a good colleague, and is being pursued with a doggedness that nothing logical can explain. I don’t think, ultimately, the case speaks to the use of hypos as much as the dangerous abuse of power by a vindictive administration. And, perhaps, a rather sickening case of the inability (or refusal) to recognize error once it has been made.

I won’t speak to specific allegations lest I unwittingly reveal information I received in confidence, though I think much of the pertinent information is now well known. That disclosure upsets the Widener administration, and apparently some Widener profs, who seem to believe that someone removed from and banned from campus on grounds of being an imminent physical danger to the campus community, a sexist, and a racist has no right to explain or defend him- or herself from such horrible allegations. [I am not speaking to the original student allegations here, but to the administration response, which was to immediately leap to DEFCON 1.] When, after dedicating over twenty years of your life to a school, you are removed from campus upon threat of campus security and not allowed to first pick up the exams you have just proctored for the stated fear that you might destroy them, one naturally and very rightly defends his or her reputation. And the administration mistakes just kept coming from that point on.

I can only hope those responsible for this travesty resign, but it appears they are instead digging themselves ever deeper into their imaginary fantasy land. This is most unfortunate because, again, there are some really good people at Widener, and they are getting dragged through this mud that is not of their making. Not to mention what it must be like for students. It is getting to the point, however, if it hasn’t already long been there, where everyone at the school should take a firm stand. There are some situations so egregious that nobody should stand idly by and just wait it out. Now I suppose that appears an easy thing for me to say, having left, and that’s undoubtedly true. But since anyone who knows me knows that I am, for better or worse, outspoken in most everything wherever I am, I feel justified in saying it all the same. The faculty should reclaim their school, in the name of all of us who have ever had some beneficial connection to it, be it student, faculty, or otherwise.

If Dean Linda Ammons or any current or former Widener faculty member wants to respond, I’d be delighted to publish a response here as a separate blog post.

UPDATE: I had agreed to participate in a Widener-sponsored project after the committee report was released, which I thought would be the end of the matter. I’ve now sent an email to my contact at Widener, withdrawing. I can’t in good conscience have my reputation associated in any way with Widener Law School.

“Pick up a copy of any law review that you see,” Roberts said, “and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.”

As I told Jost for his post, I think there is something to Roberts’ critique. Much legal scholarship has little relevance to the bar or the bench. At the same time, it would be a mistake to believe that practical utility is the only measure of legal scholarship. Empirical analyses of judicial behavior may not help judges resolve cases, but they can certainly aide in our understanding of the legal system. Much scholarship also has value for its own sake. [UPDATE: Even if some scholarship has intrinsic value, that does not necessarily mean it should be financed by law student tuition.]

Somewhat ironically, as Jost notes, this past term featured several opinions that relied heavily upon legal scholarship for their analysis, including Wal-Mart v. Dukes which extensively cited the work of the late Richard Nagareda.

Somewhat coincidentally, two legal scholars have a draft empirical study of the Supreme Court’s use of legal scholarship over the past 61 years. It finds that the Supreme Court actually cites legal scholarship quite frequently — in approximately one third of its cases. As Jost notes, eight of the current Justices cited legal scholarship at least once in their opinions this past term. The one exception: Chief Justice Roberts.

I think that it’s unlikely that anyone would bat an eye–while readers may or may not think I had dealt appropriately with various nuances, the main thesis would seem intuitively obvious, and the examples would be seen as basically what one would have expected.

Okay, now substitute “African Americans” for “Jews,” and “the United States” for “Poland,” and begin the time period in the 1880s instead of 1920 [Poland, of course, having been part of the Russian Empire before WWI]. This is the thesis of my 2001 book, Only One Place of Redress: African Americans, Labor Regulations and the Courts from Reconstruction to the New Deal. It attracted, and still occasionally attracts (as when I briefly mentioned it on this blog yesterday), some controversy (along, of course, with some plaudits). In part the controversy arises because the thesis is contrary to a certain mythos that American “progressive” forces–labor unions, racial minorities, and political elites and intellectuals who favor vigorous government regulation of the economy–are in natural harmony. In part, some critics seem to implicitly and uncharitably believe that while “our” academic work is neutral social science, “they” must have an underlying presentist political and ideological agenda.

If, however, one can separate the book’s thesis from its rather tenuous relationship to various modern controversies, it’s really no more remarkable, nor any more ideologically charged, that the Poland/Jews example provided above.

(1) Many academic books are revised Ph.D. theses. When you write a Ph.D. thesis, one goal is to show your review panel that you have mastered the literature. The easy way to do so is to cite and discuss everything even tangentially related to your narrative. Even after editing for publication, many books retain lengthy discussions of other people’s work which could easily be reduced from pages to sentences, if retained at all.

(2) For books written by law professors, law reviews encourage (indeed demand) turgid literature reviews and overfootnoting, and attorneys often equate a “thorough” legal brief with a legal brief that addresses any possible argument that the judge may think of–I remember spending hours researching a sentence or two for a footnote on obscure issues that the partner wanted to address “just in case.” These habits are hard to break when you write a book.

(3) Many professors aren’t writing for their readers. They are writing to impress tenure committees, to join an intellectual conversation followed by only a handful of others, or to create the equivalent of a reference book (as opposed to a book that you expect someone to actually read cover to cover). I suppose if these are the goals and they are satisfied, the book isn’t be “too long” from the author’s perspective. Indeed, there is a risk that a short, concise, clear book won’t be seen by one’s colleagues as having sufficient gravitas.

In my own books, I try very hard to write clearly and succinctly, to eliminate or at least limit tangents that distract from the overall narrative, to use footnotes primarily for citation purposes and not to make side arguments, to condense material as much as possible, and to write for as broad an audience as is consistent with both potential interest in the topic at hand and a reasonable level of sophistication. In short, I try to write for my readers.

I’ve been very pleased that some reviewers have appreciated my efforts with regard to Rehabilitating Lochner. A new review by Joseph Tartakovsky in National Review (unfortunately behind a paywall, but available to those with access to Lexis-Nexis) states that “Bernstein writes in a plain, clear style, and moves his story along at a brisk pace. This is a slim volume (though the small type makes it appear slimmer than it actually is), yet he manages to course through a century of shifting, complicated case law.”

An anonymous Amazon reviewer–no, I have no idea who this is–writes that “This slim volume is pithy and thought provoking. . . . He traces the crippling of the doctrine of liberty of contract in chapter 6, and does a much better job in that single chapter than others have done in much longer works. He has single sentences that convey as much information as many law review articles. . . . It’s incredible you get this all in only 129 pages!”

Maybe one day I’ll write a post about Rehabilitating Lochner’s editing process. But just to give an example, I eventually boiled down what was originally many pages about Cass Sunstein’s influential understanding of Lochner into two paragraphs. I could have easily written a book twice as long, that wouldn’t have been half as “good” from the reader’s perspective.

The vast majority of academic books I’ve read should have been at least 30% shorter, though there are some very long books–like Michael Klarman’s From Jim Crow to Civil Rights–that fully justify their length.

UPDATE: I’ll always be grateful to Professor Black of Brandeis University’s History Department, who set a strict five-page limit on our papers for his class on the French Revolution. For my first paper, I managed to cover the history of Jews during the French Revolution in those five pages, editing down 20+ pages of draft material into a paper Black told me was well-received by the one of the leading historian of French Jews (unbeknownst to me, his wife!). I learned from this experience that often pages could be cut down to paragraphs, paragraphs to sentences, and sentences to words, without the reader losing any essential information.

Natelson, who retired in May 2010 after serving 23 years as a professor in the law school to take a job as a senior fellow with the Independence Institute, was informed upon his return to Montana in June that the law school faculty had voted against granting the constitutional scholar emeritus status.

Emeritus status is granted to a retiring professor whose colleagues feel he or she is worthy of the academic recognition and prestige based on the faculty member’s research, service and instruction during his teaching tenure.

“Emeritus status for retirees is pretty routine and almost always given,” Natelson said. “I find the whole thing very peculiar. Even though there’s a history here, this thing seems so petty, so small.”

The decision is also odd given that Prof. Natelson was arguably the most prominent scholar on the Montana law faculty. According to the Missoulian:

A recent survey shows that between 2001 and 2010, the UM law faculty published 55 articles in Westlaw, a national online legal research database. Natelson said he is responsible for 20 of those.

Last year, he was highlighted in “Vision,” the university’s research publication, for his work trying to interpret the U.S. Constitution according to the Founding Fathers’ intent.

Montana Dean Irma Russell defended the decision on the grounds that emeritus status is a “privilege” and that each faculty member had to make a judgment based on his or her “conscience.” Prof. Natelson, long time readers may recall, is no stranger to conflict with his former faculty colleagues. As noted here and here, he fought with the school over his teaching assignments, and some of his colleagues were not happy with his political activities. Natelson now works with VC blogger Dave Kopel at the Independence Institute, where he continues to work on legal scholarship.

[Hat tip: Paul Caron]

UPDATE: Prof. Natelson comments here.

several members of the committee expressed reservations about approving that status for the ABA, which was found to be out of compliance with 17 regulations, including the need to consider student-loan default rates in assessing programs; to solicit and consider public comments; and to set a standard for job placement by its member institutions.

Arthur E. Keiser, chancellor of the Keiser Collegiate System, said that an accrediting agency would not accredit an institution with 17 outstanding issues. “There is a real concern that this agency doesn’t get it,” he said. Anne D. Neal, president of the American Council of Trustees and Alumni, was one of three committee members who opposed the motion to continue the bar association’s recognition, saying that she had no confidence it would be in compliance within a year.

Representatives of the association assured the committee that the changes recommended by the department were already in the process of being carried out and would be completed in time. . . .

In the end, a majority on the federal advisory committee voted to continue the bar association’s recognition, but expressed frustration that they could not take stronger actions or at least state their concerns with stronger language.

Hat tip: Paul Caron (who has more here).

On balance, I think David is right. As he points out, the speaking engagements that really help an academic career are those attended by other academics. And professors rarely attend events sponsored by student groups. They also give little or no weight to speeches before student groups in making hiring and promotion decisions.

Like David, I have spoken at many Fed Soc student chapter events. When I first started doing Fed Soc talks, I almost never saw a faculty member in the audience. Later, as my academic work became better known, I did start to see some (though not much more than David’s estimated median of about one per speech). Most of these academics, however, were people who already knew me or at least had an interest in my work. They would probably have continued to follow my scholarship even if they hadn’t come to the Fed Soc event.

Speaking to student audiences can help an academic career indirectly because it improves your public speaking skills. On balance, however, the academic who wants to maximize his career prospects would do better to spend the same time writing more articles and/or speaking at faculty events.

The real benefit of Fed Soc speaking engagements is the opportunity to influence public debate by presenting your ideas to a wider audience. That’s the main reason why I do it (also, it’s fun!). It’s also, of course, the reason why the Fed Soc sponsors these events in the first place. But I don’t expect it to do much for my career prospects as an academic.

To the extent that Fed Soc speaking invitations are an advantage for right of center scholars, they are offset by American Constitution Society speaking opportunities for liberals. Like Fed Soc, the ACS has chapters at nearly all major law schools, and they too regularly bring in outside speakers. I’ve spoken at several ACS events myself (I was invited to provide ideological balance on a panel with multiple participants). But just as Fed Soc chapters invite primarily libertarians and conservatives, ACS chapters understandably invite mostly liberals.

It’s also worth noting that many law schools have research centers that, while formally neutral, actually focus primarily on left of center ideas. Consider, for example, the many law schools with “social justice” research centers. Few if any top law schools have similar research centers organized around libertarian or conservative issues. Most research centers regularly sponsor academic conferences that invite outside speakers. And unlike speaking events organized by student groups, events organized by faculty-run research centers often do attract a large faculty audience and have a real impact on professors’ career prospects.

I don’t object to the presence of these research centers. Even when they are not ideologically neutral, they can still make useful contributions to scholarship. But the speaking opportunities they offer to faculty have much greater career-enhancing value than those provided by student groups such as Fed Soc or ACS.

Another Advantage Aspiring Law Teachers on the Right Have Over Others

It’s programs like this, which employ ideological criteria for eligibility. The American legal academy is already quite far to the right on a range of economic and policy issues by comparison to both the rest of the U.S. academy and the legal academies in other common law jurisdictions; programs like this, which provide special opportunities to those who would push it even further to the right, really do make it absurd to then turn around and complain that “conservatives” are at any kind of disadvantage in securing academic jobs.

Leiter is linking to the Federalist Society Olin-Searle-Smith fellowships, which are awarded to up to three students a year.

(1) Leiter seems to think of this as “another advantage” because “the American legal academy is already quite far to the right on a range of economic and policy issues by comparison to both the rest of the U.S. academy and the legal academies in other common law jurisdictions.” This is true, but this still makes the American legal academy far to the left to anyone who is actually “on the right.” If Leiter means that it might be easier for a conservative to get a job as a law professor than as a sociology professor, I’m with him on that. If he’s arguing that it’s easier for a conservative to get a job as a law professor than for a liberal to get the same job, I want some of what he is smoking.

(2) While I’m a big fan of the Olin-Searle-Smith fellowships, I don’t understand why Leiter talks about programs “like this.” It is the only such post-law school fellowship program. Law schools hire somewhere between 150 and 350 new law professors per year, depending on how the economy is doing. The Olin etc program gives candidates “on the right” a leg up on as many as three of those positions. (And I should add that the Federalist Society sometimes awards these fellowships to liberals who express interest in originalism or other methodologies favored by conservatives). If we assumed that all other things were equal, this would still be a pretty minor advantage. If we realistically assume that not everything is equal, these fellowship hardly make up for the disadvantages in being “on the right” when applying for an academic job, especially if one specializes in a public law field dominated by ideological liberals, such as constitutional or international law. And meanwhile, while I haven’t done a census, in my experience on GMU’s hiring committee there seem to be plenty of law school “centers” with left-wing ideological orientations, such as NYU’s Brennan Center, that produce in total far more than three annual legal academic candidates through their fellowship programs.

All that said, as I’ve explained in detail before, legal academia does have a lot to offer to conservatives and libertarians, and I would be the last to discourage someone “on the right” from trying it–though I’m not sure a social conservative who has written even the most subtle or brilliant possible defense of Bowers v. Hardwick, or, for that matter, even a cunning and scholarly natural law defense of limiting marriage to heterosexual couples, could expect to get a job outside of one of the schools sponsored by conservative Christian institutions. And the idea that on average, candidates “on the right” have an advantage in the academy, except relative to the even greater burdens they face in other academic disciplines, is ludicrous.

UPDATE: A law professor who wishes to remain anonymous emails:

Just a slight amendment to your comment that “these fellowship hardly make up for the disadvantages in being ‘on the right’ when applying for an academic job[.]” Not only don’t they make up for it, but in many cases, fellowships like this can disqualify an applicant from consideration outright. When I was on the market just a couple of years ago, I was encouraged to get rid of any easily identifying CV marker of conservative leanings. I could not do so entirely, as at least some of my scholarship might give me away; But at least I had the protection that people actually had to read it to realize that.

Anybody applying for the Fed Soc fellowship should know that while it might help you in all of the ways that other strong and high quality fellowships can, it also can be and often is seen as a black mark by many people in the legal professoriate.

Of course, if it’s already obvious that you are “on the right,” procuring an Olin has no disadvantages. But the emailer has a point; a candidate without obvious conservative or libertarian c.v. markers would have to think long and hard about his alternatives before accepting this fellowship.

FURTHER UPDATE: Leiter adds an addendum, which includes the following:

Once Federalist academics are in teaching, they benefit from a continuous stream of invitations to speak at Federalist Society events at law schools across the country, which gives them an exposure not available to young legal academics not on the right.

This is true, but largely irrelevant. I’ve spoken at dozens of Federalist Society events over the years. I’d guess that the median number of professors who attend these events, other than as a debater/commenter, is zero. The average is likely less than one. [I don't think this is a reflection of hostility to me or the Federalist Society; professors at most law schools are kept quite busy with faculty workshops, candidate job talks, and other faculty events.] So while I love doing Fed-Soc events, I can’t agree that it significantly, or even insignificantly, boosts one’s academic career. It may increase one’s overall influence in the world by exposing students’ to one’s ideas, but that’s a different matter entirely.

And of course, the reason the Federalist Society sponsors these events to begin with is that there are so few right-of-center voices on most law school faculties.

Helped by the recession, more active recruiting and a sea change in student perceptions of the military, enrollment in ROTC programs on college campuses is booming.

Even with ongoing U.S. involvement in conflicts in Afghanistan, Iraq and now Libya, participation in the program has surged 27% over the last four years — to 56,757 men and women, according to the Defense Department. The military boosted the number of ROTC scholarships to help expand the wartime officer corps, and the recession made the offers attractive to students.

Today’s college students, who never faced a military draft and whose childhood memories include the terrorist attacks of Sept. 11, 2001, are more receptive than their parents’ generation to seeing fellow students in uniform. Returning veterans who served in Iraq and Afghanistan and are now enrolled in college also create a more sympathetic, and familiar, image of the military.

In another sign of the changing times, the congressional rescinding last year of the “don’t ask, don’t tell” ban on gays serving openly in the military has recently led Stanford, Harvard and several other elite universities to take steps to welcome the ROTC back to their campuses for the first time in 40 years.

On-campus military training still raises hackles for some. Yet even critics acknowledge that most current college students are willing to accept the ROTC.

I previously wrote about the return of ROTC here and here. Although I thought that DADT was a shortsighted and unjust policy, I also argued that banning ROTC and military recruiters from campus was not the right way to combat this form of anti-gay discrimination. Be that as it may, the return of ROTC to schools that had previously banned it is a positive development.

The charge of the Academic Senate Committee on Academic Freedom (CAF) is to “report to the Division any conditions within or without the University which, in the judgment of the committee, may affect the academic freedom of the members of the University.”

On March 11, 2011, CAF received a complaint from a professor contending that his/her academic freedom rights had been seriously abridged by the UCSD administration. With regret, we have concluded that the administration did indeed violate generally accepted norms of academic freedom.

The complaint arose out of a letter that the professor (“Professor A”) received on June 16, 2009 from the dean of an academic unit at UCSD. The dean told CAF that the letter was drafted with the assistance of lawyers in the Office of the Senior Vice Chancellor for Academic Affairs. The letter was cc’d to the Office of Research Affairs and the Office of the Senior Vice Chancellor for Academic Affairs. The dean’s letter arose out of a long-running academic disagreement between two faculty members (a dispute in which CAF does not take sides). The dean directed Professor A to cease pursuing a critical re-examination of the other professor’s research and data. The letter said (we here obfuscate identities):

“You are to stop harassing [Professor B]. This means: stop contacting B with questions regarding [name of B's publication], his/her research methods, or his/her previous research methods; stop contacting others about your re-analysis of his/her data; refrain from discussing … your re-analysis of B’s data at your presentations at any meetings, including scholarly meetings like the [name of professional association]; and do not publish texts that refer to … your re-analysis of B’s data.”

The letter also stated:

“If you continue to engage in these activities, you may be subject to formal discipline, which can include written censure, reduction in salary, demotion, suspension, or dismissal.”

On July 30, 2009, the dean e-mailed Professor A, primarily on a different aspect of the case, saying, “You must make your own choices regarding your manuscript [and] its content.” On November 17, 2009, the dean sent a letter to Professor A saying,

“I write to inform you that I cannot rescind the directives given to you in my June 16, 2009 letter. As dean, I am very concerned with protecting academic freedom.”

A longstanding and well-respected faculty member, who was acting chair of Professor A’s department when the initial (June 16th) letter was written, communicates the following:

“I was absolutely astonished when I read the dean’s letter to [Professor A]. I saw it as a very explicit set of threats designed to preclude [Professor A]’s publishing anything further on the subject … , or even speaking to this issue were it to be raised in talks [Professor A] gave on or off campus. Accordingly, at my next meeting with [the dean], I brought up the subject and asked whether my interpretation of his correspondence with [Professor A] was correct. I was told that it was.”

In attempting to understand the dean’s position, and in some cases at his urging, CAF listened to parties connected to the case and read publications, manuscripts, and regulations relating to it. CAF also, while concealing the identities of those involved, consulted with the systemwide University Committee on Academic Freedom and with a legal academic who is a nationally recognized authority on academic freedom. We cannot avoid the conclusion that the dean’s letter contains clear and unacceptable violations of core academic freedom rights, violations that were apparently implicitly or explicitly supported by others in the University administration at the time.

The dean told CAF that his letter and subsequent actions were a well-intentioned effort to protect reputations and collegial relations, since the letter stemmed from a dispute between two faculty members. However, the UCSD faculty should understand that the dean’s letter did not prohibit just slander, libel, or personal disputes; the dean’s letter prohibited utterance, research, and publication within the academic field of study. Moreover, no faculty body had (or subsequently has) found that either professor had talked or published unprofessionally. To the contrary: a duly-appointed faculty committee involved in the dispute called precisely for continuing discussion through the normal channels of academic debate (publication and oral presentation).

Faculty members’ rights to study, re-analyze, and publish controversial scholarly materials cannot be abridged. These rights to academic freedom cannot be administratively revoked to prevent possible future breaching of professional norms. In our view, the campus administration’s fundamental responsibility is precisely to protect the right of faculty members to research and publish scholarly work even when others, on or off campus, find the work or its conclusions controversial or objectionable.

We call upon the campus administration to promptly and publicly accept responsibility for serious errors of judgment in this case. We further call upon the administration to take concrete steps to prevent future violations of academic freedom rights, such as training for all administrators and their staff on these rights, which lie at the very heart of the University.

Shocking and appalling.

The issue involves Richard Biernacki, a professor of sociology, and Jeff Elman, dean of the Division of Social Sciences.

In June 2009, Biernacki submitted a manuscript titled “Inside the Rituals of Social Science” to Duke University Press. The manuscript examines what Biernacki calls “methodological problems in the field” and critiques the work of other sociologists, including one of Biernacki’s colleagues at UCSD.

The same month Elman wrote Biernacki a letter ordering him not to publish his work or discuss it at professional meetings. Doing so, Elman wrote, could result in “written censure, reduction in salary, demotion, suspension or dismissal.”

Elman did not respond to a request for comment. But his concern, according to his letter to Biernacki, was that Biernacki’s research and manuscript “may damage the reputation of a colleague and therefore may be considered harassment.” …

Moreover, according to a University statement quoted by Inside Higher Ed (which has more on the case), the University seems to be acknowledging the charges:

We deeply regret that statements made by an academic administrator have led to questions about the administration’s commitment to academic freedom rights…. The Academic Senate leadership and administration of the University of California, San Diego unequivocally affirms our commitment to the principles of Academic Freedom. We acknowledge the recent determination by the Committee on Academic Freedom (CAF) and agree with CAF that the administration has a fundamental responsibility to protect the rights of faculty to research and publish scholarly work, and we will jointly redouble our efforts to ensure that every member of our administration fully understands this responsibility.

Sounds very bad. The Committee on Academic Freedom report noted, “We cannot avoid the conclusion that the dean’s letter contains clear and unacceptable violations of core academic freedom rights, violations that were apparently implicitly or explicitly supported by others in the university’s administration at the time.” That sounds like the right conclusion.

If anyone has pointers to the underlying documents, such as the offending letter from the dean, the Committee on Academic Freedom report, or the UCSD statement, I’d love to see them.

UPDATE: I now have the full Committee on Academic Freedom report, which I quote in this follow-up post.