The Volokh Conspiracy

My wife Alison and University of San Diego law professor Gail Heriot have just published an article in Engage on the apparently growing practice of sex discrimination on behalf of men in college admissions. Heriot serves as a Commissioner at the US Commission on Civil Rights, where Alison is her special assistant/counsel. Here’s an excerpt from the article:

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.

In a column in Saturday’s NYT, Harvard economics professor Greg Mankiw responds to the student “walkout” of his introductory economics class. The column’s title: “Know What You’re Protesting.” Here’s a taste.

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.]

George Will recently published an interesting column on Fisher v. Texas, an important affirmative action case that the Supreme Court is in the process of deciding whether to take:

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.

Today’s NYT has a lengthy front-page article on legal education suggesting that a major problem with legal education is the failure to teach law students how to practice law. There is something to this complaint — some schools and some legal academics do relatively little to prepare their students for practice and there is much relatively worthless legal scholarship — but the article overstates the case, fails to identify workable alternatives, and makes various errors about legal education and scholarship along the way. For instance, the article identifies a philosophy paper, published in a philosophy journal, as an example of how legal scholarship is divorced from legal practice. The article simultaneously harps on the high cost of legal education and suggests more clinical education is a good way to help prepare law students to practice law. Yet the article makes no mention of the fact that clinical education is more expensive than traditional doctrine-oriented classes.

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.

The New York Times has an interesting story on the declining number of math and science majors in universities. The article identifies many potential culprits, including grade inflation in the humanities and social sciences.

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.

I agree with most of what co-blogger Eugene Volokh writes about the benefits of have a wide range of student groups at law schools, including ones that focus on specific ethnic or religious groups. I addressed a similar issue in this 2007 post:

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.

The National Law Journal has a new blog, Law School Review, focusing on legal education.  Contributors include Brian Tamanaha, William Henderson, Erwin Chemerinsky, John O’Brien, Lucille Jewel, Kyle McEntee, and Michael Olivas.

In the latest George Washington Law Review, Justice Stephen Breyer has an interesting reflection on writing his first law review article when he was a professor at Harvard in the late 1960s. It’s an interesting essay on what he was trying to say and why he wrote that article, but I was struck most by what Breyer says about Harvard’s tenure standards forty years ago. The article was published as The Uneasy Case for Copyright, and here’s Justice Breyer on the experience of writing it:

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.

Writing a good book review of a bad book is always a challenge, and I always admire those who do so successfully. So here is a very well-done review by Matthias Kuntzel and Colin Reade of “The Arabs and the Holocaust.” One quick excerpt:

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.

Lots of folks couldn’t believe that John Mearsheimer, distinguished international relations professor at the University of Chicago, would endorse an anti-Semitic book by fringe kook anti-Semite Gilad Atzmon. Perhaps he was misquoted, or simply blurbed the book without realizing what he was doing? Surely he would retract once a public controversy erupted?

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.”

From Epstein’s remarks on accepting the Bradley Prize in May:

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.

Star: Professor at his first lecture of the semester to Canadian university students: “Despite what you may have heard elsewhere, everyone is not entitled to their opinion. ‘All Jews should be sterilized’ would be an example of an unacceptable and dangerous opinion.”

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.

I agree with most of co-blogger David Bernstein’s advice to aspiring law professors. In particular, David is absolutely right to reject the view that you can’t have a major impact on the scholarly and public debate in your field unless you’re at a top 15 school. I had the same fear when I was on the job market. But I was wrong.

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.

A wildly disproportionate percentage of law school faculty graduate from a very few top law schools, especially Harvard and Yale. Not surprisingly, graduates of these schools turn to their mentors and references for advice on how to navigate the teaching market.

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 foolishly managed to once again entangle myself in a debate with Brian Leiter. There is at least one good reason not to try to engage in a reasoned blog debate with Leiter, which is that he doesn’t believe in it:

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.

At Prawfsblawg, Paul Horwitz offers useful perspective on “Inside the Law School Scam” and its author’s decision to reveal his identity.

The Atlantic‘s Daniel Indiviglio highlights the enormous growth in student loan debt over the past twelve years.

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.

In the latest post at Inside the Law School Scam, titled “An apology,” the LawProf reveals himself to be the author of this essay.

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.

Some prominent academics have argued that the individual mandate is a clearly constitutional exercise of the federal government’s taxing power. Some of these same academics have argued that opponents of the individual mandate’s constitutionality are well outside the legal mainstream. Yet as of today, there has not been a single federal court — indeed, perhaps not even a single federal judge — who has accepted the taxing power argument. Not a one. And yet a half-dozen federal judges have found the mandate to be unconstitutional. So which arguments are outside of the mainstream again? Cf. Rumsfeld v. FAIR

Like my co-blogger David Bernstein, I’ve been closely following the situation at Widener University concerning the charges brought against Professor Lawrence Connell. (As some readers may recall, I filed an affidavit in the case in Connell’s support.) And like David, I was rather astonished by the latest news that the University has ordered that Connell will be suspended for a year without pay, must be subject to a psychiatric exam, and must apologize to students who accused him.

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.

The saga of Dean Ammons vendetta against Professor Lawrence Connell, revolving around trumped up charges of harassment and discrimination, gets more and more absurd. Having been almost entirely vindicated by a faculty committee, with the only remaining “charge” that he dared to rebut false accusations against himself publicly, Dean Ammons has recommended that Connell be suspended for a year without pay and be forced to undergo a psychiatric evaluation. Widener’s administration, apparently oblivious to the long-term damage this is doing to the law school’s and university’s reputation, agreed. I hope Connell sues, and I hope he wins his lawsuit, and wins big. Meanwhile, if any of our readers are considering attending Widener, I recommend looking elsewhere–anywhere else. If Connell can be abused in this way, so can you. H/T Instapundit.

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.

CQ‘s Kenneth Jost assesses “Chief Justice Roberts’ Ill-Informed Attack on Legal Scholarship” on his blog. As had been widely reported and discussed, Chief Justice Roberts was dismissive of the value of much legal scholarship at the Fourth Circuit judicial conference in June.

“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.

Let’s say I wrote a book that had the following thesis: (a) Governments tend to favor those with political power; (b) before World War II, Jews in Poland had little political power; and (c) therefore, various labor regulations enacted in Poland between 1920 and 1938, tended at best not to take the interests of Jews into account, and at worst was intentionally aimed at excluding them from the workforce. Judicial decisions invalidating labor regulations, by contrast, tended to help Jewish workers. Let’s say the book provided specific examples that backed up this thesis.

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.

Not in absolute length, but relative to what they have to say. A few reasons:

(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.

The Missoulian reports that the faculty at the University of Montana School of Law has voted agaisnt granting retired Professor Rob Natelson “emeritus” status.

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.