Archive | Academia

Rodney Smolla Steps Down as Furman President

Rodney Smolla, previously a prominent law professor and dean of Washington & Lee School of Law, has resigned from his position as president of Furman University for personal reasons. According to this story, he is recently divorced from his wife of fourteen years. Smolla will be a visiting professor at Duke and Georgia law schools next year. [...]

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Why Did Law Professors Misunderestimate the Lawsuits against PPACA?

I quite enjoyed reading David Hyman’s new article of this title. It vividly illustrates a point that I tried to make three weeks ago at the Intellectual Diversity Conference at Harvard Law School (Panel 2 – 47:00) — which is that the liberal echo chamber of elite law schools has made them startlingly poor at predicting and analyzing what arguments will actually succeed in American courts. (See also Randy’s thoughtful discussion of this topic.) Hyman’s piece is exactly right, I think, and it is also breezily and stylishly written. Here is the abstract:

Almost without exception, law professors dismissed the possibility that the Patient Protection and Affordable Act Act (“PPACA”) might be unconstitutional — but something went wrong on the way to the courthouse. What explains the epic failure of law professors to accurately predict how Article III judges would handle the case? After considering three possible defenses/justifications, this essay identifies five factors that help explain the erroneous predictions of our nation’s elite law professors, who were badly wrong, but never in doubt.

Download Hyman’s article here. [...]

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Harvard Federalist Society Conference: Intellectual Diversity and the Legal Academy

Last week, I posted about a conference at Harvard on the topic of intellectual diversity in the legal academy. I’m pleased to report that the conference was a great success, well conceived and well executed by the excellent students of the Harvard chapter of the Federalist Society. If nothing else, it succeeded in shining a light on the stark political / jurisprudential / methodological imbalance at the top law schools. It turns out that many of these schools are just like Georgetown Law — where most students will graduate after three years without ever once laying eyes on a conservative or libertarian professor at the front of a classroom.

Harvard Law School Dean Martha Minow was unable to attend the conference, but she did provide a written statement, which is an eloquent endorsement of intellectual diversity:

“He who knows only his own side of the case, knows little of that.” John Stuart Mill’s insight carries importance for any place of learning and special significance for a law school. For one cannot truly understand a legal argument on behalf of one client or side without thoroughly understanding and addressing competing arguments and objections. Even if there were no other reasons available, this would supply sufficient basis for a robust commitment to intellectual diversity among the faculty and students, courses and journals, activities and speakers at Harvard Law School.

But there are other powerful reasons to pursue and nurture intellectual diversity at Harvard Law School. We recruit extraordinary students and work hard to equip them to pursue great careers and great dreams. Both in honing their aspirations and equipping them to achieve them, nothing works as well as serious intellectual encounters with smart and motivated individuals with varied viewpoints. Faculty and students also advance knowledge and law reform through scholarship and public

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Harvard Federalist Society: Intellectual Diversity and the Legal Academy

The Harvard Chapter of the Federalist Society is hosting a very important conference tomorrow on intellectual diversity in the legal academy.

Many people realize that legal academia “leans” to the left. But even alumni — indeed, even major donors — are often unaware of the extent of the imbalance. At Georgetown, for example, the ratio of liberals to conservatives/libertarians is roughly 116 to 3. At most top schools, the ratio is similar. One might quibble about definitions, but even on the broadest conception of “conservative” or “libertarian” or, let’s just say, “right of the American center,” most top law schools can count such professors on one hand. In public law, and particularly constitutional law, the disparity is even more extreme.

As a rule, professors don’t like to talk about this. And so it has fallen to the excellent students of the Harvard Federalist Society Chapter to conceive and organize this first-rate conference. Here is the agenda:

Panel I: Problem: is there a lack of intellectual diversity in law school faculties?
12:00-1:00 p.m.

Jack Goldsmith (Harvard Law School)
James Lindgren (Northwestern University Law School)
Mark Tushnet (Harvard Law School)
Moderator: David Barron (Harvard Law School)

Panel II: Effects: should law schools care about intellectual diversity?
1:30-3:00 p.m.

Richard Fallon (Harvard Law School)
Victoria Nourse (Georgetown University Law Center)
Michael Paulsen (University of St. Thomas School of Law)
Nicholas Quinn Rosenkranz (Georgetown University Law Center)
Moderator: Stuart Taylor (National Journal)

Panel III: Solutions: encouraging intellectual diversity
3:30-5:00 p.m.

Paul Campos (University of Colorado Law School)
George Dent (Case Western Reserve University School of Law)
Robert P. George (Harvard Law School)
Jeannie Suk (Harvard Law School)
Moderator: Steven Calabresi (Northwestern University Law School)

Keynote Address
Sherif Girgis (Yale Law School)
5:30-6:00 p.m.

6:15-7:00 p.m.

This conference is open to the public. More [...]

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College Admissions and Affirmative Action for the Well-Off

Instapundit links to this Daily Beast piece:

These days, a nearly-perfect GPA is the barest requisite for an elite institution. You’re also supposed to be a top notch athlete and/or musician, the master of multiple extracurriculars. Summers should preferably be spent doing charitable work, hopefully in a foreign country, or failing that, at least attending some sort of advanced academic or athletic program.

Naturally, this selects for kids who are extremely affluent, with extremely motivated parents who will steer them through the process of “founding a charity” and other artificial activities. Kids who have to spend their summer doing some boring menial labor in order to buy clothes have a hard time amassing that kind of enrichment experience.

The irony is that even admissions officers seem to be put off by this dynamic; presumably that’s why I’m told that kids now have to have fake epiphanies about the suffering of other, less privileged people instead of just having fake epiphanies about themselves. This proves that they are really caring human beings who want to do more for the world than just make money so that they, too will, in their time, be able to get their children into Harvard.

I had something of an epiphany on this when I visited a D.C.-area private school that boasted that it had one of the best high school girls’ lacrosse teams in the country. Why in God’s name, I wondered, would anyone care about this when considering a private school, especially given that I was there for a kindergarten open house? Then it dawned on me: this is the way the school gets some girls with marginal academic credentials into elite schools. All elite colleges with women’s lacrosse have to fill their teams, and lacrosse is prevalent only at expensive private schools. [...]

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How I Became a (Minor) Victim of Academic Plagiarism

Today, the Baltimore Sun published a detailed story about Towson University Professor Benjamin Neil, who has been accused of numerous instances of plagiarism, especially in a 2012 article on Kelo v. City of New London and post-Kelo eminent domain reform which has since been withdrawn by the Journal of Academic and Business Ethics:

A longtime Towson University professor has resigned his post as the head of the city school system’s ethics panel amid allegations that his published academic articles contain content from dozens of sources without proper — or in some cases any — attribution.

University officials and journal publishers say they are reviewing several articles submitted by Benjamin A. Neil, a legal affairs professor, after a librarian at another university alerted them to the issue.

A Baltimore Sun review of five papers published by Neil shows passages with identical language and others with close similarities to scholarly journals, news publications, congressional testimony, blogs and websites. In many cases, there was no attribution.

Neil, who has taught at Towson for more than 20 years, says he properly attributed work from other authors.

“I don’t think I’ve done anything wrong,” said Neil, 62. “The issue seems to be that I didn’t put things in quotes. But I’ve given attribution to people….”

Meanwhile, some of his colleagues across the country and authors of the original material who were contacted by The Sun criticized what they called “lazy plagiarism” and a breach of academic integrity. Experts say the incident highlights the pressures that professors feel to publish.

“It’s completely unacceptable conduct, particularly for a professor,” said Jeffrey Beall, a scholarly initiatives librarian at the University of Colorado, Denver who contacted Towson officials and journals about the alleged plagiarism.

It so happens that I was one of the scholars whom Neil plagiarized [...]

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Chemerinsky on Color Blindness


Erwin Chemerinsky, founding dean of the University of California, Irvine School of Law, said that the concept of colorblindness holds great rhetorical appeal but that “there is no basis for concluding that the 14th Amendment equal protection clause requires colorblindness.” In drafting the 14th Amendment, he said, Congress recognized “an enormous difference between a white majority disadvantaging minorities and a white majority acting to remedy past discrimination.”

C’mon Erwin. The text of the relevant portion of the Amendment reads

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

It’s fine to conclude that based on one’s own understanding of the text, history, proper modes of interpretation and so on, the Fourteenth Amendment doesn’t require colorblindness. But surely the fact that the Amendment is itself textually “color blind,” and speaks only of “persons” and not groups, and shows no textual evidence that Congress recognized “an enormous difference between a white majority disadvantaging minorities and a white majority acting to remedy past discrimination” is itself “a basis,” even if you don’t find it persuasive, for concluding otherwise. And of course there are other reasons one could reasonably interpret the Fourteenth Amendment to require color-blindness (the natural rights tradition, alluded to in this context often by Clarence Thomas; the historic concern with and opposition to “faction”; the mistrust of states, especially the southern states and especially with regard to [...]

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Judge Douglas Ginsburg Joins the George Mason Law School Faculty

The official announcement from the law school:

Judge Douglas H. Ginsburg will join the George Mason law faculty as professor of law beginning in July of 2013. Judge Ginsburg, who is currently a professor of law at New York University School of Law, will continue also to serve as senior circuit judge of the United States Court of Appeals for the District of Columbia Circuit.

Judge Ginsburg is a leading authority on competition law and policy, administrative law, and law and economics. In his distinguished career, he has been a professor of law at Harvard University (1975-1983); held a number of posts in the executive branch of federal government (1983-1986), including assistant attorney general for antitrust in the U.S. Department of Justice; and was then appointed to the United States Court of Appeals in 1986, serving as chief judge from 2001 to 2008. Judge Ginsburg taught as an adjunct professor at George Mason over a number of years, as well as having appointments as a visiting lecturer at the University of Chicago Law School and a visiting professor at University College London, Faculty of Laws. For the past two years he has been on the faculty of New York University.

“It’s an honor and delight to welcome Judge Ginsburg back to George Mason,” said Dean Daniel Polsby. “He is a teacher of long experience and matchless depth who understands his subjects from both practical and theoretical perspectives. Our students could not have a better teacher, and we could not have a better colleague.”

Judge Ginsburg is a graduate of Cornell University and the University of Chicago Law School. In addition to courses in antitrust and other subjects, he will teach and lecture in the programs of the school’s Law & Economics Center.

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Since We’re Talking About Ideological Diversity in the Academy….

I had a relatively recent conversation about this with a very prominent member of the Yale Law School faculty. I mentioned that in my lifetime I don’t think that Yale has ever hired a “right of center” constitutional law scholar. (Note: not my career, my lifetime; please note that Bork was hired before my lifetime started, and as antitrust scholar; also, there was a specific reason that I mentioned constitutional law, but it’s tangential to the story). The response was in part, and I quote, “I simply don’t know what right of center means if it does not include [Akhil] Amar.”

Now, Amar calls himself a “liberal,” 33 Am. Crim. L. Rev. 1193, 1196 (1996), is consistently referred to in the media a “liberal” or “liberal Democrat” without apparent objection from him, and has views on Constitutional Law which, despite some heterodoxy, are still ultimately overall left of center, and clearly so. Yet my correspondent not only argued that Amar is “right of center,” but suggested that he can’t imagine why anyone would think otherwise.

The point being this: Most left-of-center law professors think of themselves as being tolerant and open-minded, and wouldn’t consciously discriminate against a faculty candidate because of ideological differences. But if you’re a liberal considering conservative candidates (and vice versa), as Jonathan suggests you might have to make a conscious effort to overcome a natural skepticism of the quality of someone’s ideas when their worldview is contrary to yours. And you also may have to make an effort to overcome the blocking tactics of the minority of your colleagues who would and do, in fact, intentionally discriminate. How much of an effort you will make will likely in part depend on the extent to which you think, as an empirical matter, you need to make such [...]

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Conservatives in the Academy

In light of my post on Steven Hayward’s appointment at the University of Colorado, I thought it might be worthwhile re-posting some earlier thoughts on the general subject.  Here are some thoughts from a post of mine from 2003, prompted by this David Brooks column.

“LONELY CAMPUS VOICES”: Today’s David Brooks column struck a chord. When I was an undergraduate at Yale, I had several long discussions with my senior essay advisor about whether to pursue my PhD. My advisor, who was himself quite liberal, cautioned against it, largely because of my emerging, right-of-center political views. As he described it, succeeding in the liberal arts academy is tough enough as it is without the added burden of holding unpopular views. To illustrate the risk, he noted that one of his colleagues on the graduate admissions committee explicitly blackballed each and every candidate who had ever received financial support (scholarships, fellowships, etc.) from the John M. Olin Foundation because, his colleague insisted, the Olin Foundation only funded people who thought like they did, and Yale did not want any graduate students who thought that way. If I truly wanted to be an academic, he counseled, I was better off going to law school. While he didn’t know much about the politics of the legal academy, a law degree would provide a better safety net than a history PhD. In the end, that’s what I did.

My experience in the academy further confirms Brooks’ account. Most of the hostility faced by conservatives (and libertarians) is not explicit, and often not conscious or deliberate. In many cases, the subject matter and methodology of conservative scholarship is simply of no interest to those on the left (and probably vice-versa). At schools where there are no tenured conservatives, job candidates and junior professors may

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Conservative Studies at the University of Colorado

Last week, the University of Colorado announced that Steven Hayward has accepted a one-year appointment as the university’s first “Visiting scholar in Conservative Though and Policy.”  Hayward, who holds a Ph.D. in American Studies from Claremont Graduate School is the author of several books, including volumes on Reagan and Churchill, and has held positions at the American Enterprise Institute, Pacific Research Institute, and the Ashbrook Center at Ashland University. He is also a contributor to Powerline, where he announced his appointment.  While at Colorado, Hayward will teach four courses, including two in Constitutional Law, one in political thought, and one on “Free Market Environmentalism.” Here are reports on the appointment from the WSJ and Chronicle of Higher Education.

Hayward’s appointment is the result of the University’s efforts to respond to complaints that there is a lack of ideological and viewpoint diversity on the faculty.  While Hayward’s appointment is for one year, the position is privately funded for the next three years, largely by university alumni.  Others considered for the appointment included Linda Chavez and the Brookings Institution’s Ron Haskins.

Is Hayward’s appointment a good thing for viewpoint diversity on university campuses?  While his presence will provide some additional viewpoint diversity on the Colorado campus, it also smacks of the sort of tokenism many on the Right condemn.  Peter Lawler sees the appointment as “conservative affirmative action” and Max Boot fears this sort of thing will encourage the further academic ghettoization of conservative thought.  Jim Huffman, former dean at the Lewis & Clark law school, expresses similar concerns.  Half of the country may have right-of-center views, but a single token is supposed to constitute balance?  How sad is it that a major university would have to create a position like this to ensure a minimal range [...]

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Clearing the Air in the Faculty Lounge

Today all of The Faculty Lounge’s permanent bloggers posted a notice stating that none of them have ever disclosed identifying information about anonymous or pseudonymous bloggers to any third party. The post comes in response to allegations by Paul Campos that someone at TFL had given such information about a pseudonymous commenter to Brian Leiter.  More background here.

UPDATE: Paul Campos seems less-than-satisfied with the TFL statement. Paul Horwitz is, shall we say, less-than-satisfied with Campos’s post. [...]

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Color Me Skeptical

Co-blogger Jonathan Adler quotes Professor Herbert Hovenkamp of the University of Iowa Law School, below, as stating:

The overwhelming majority of my colleagues believe in diversity in faculty hiring, and I believe most would include ideological diversity of both right and left. Some would regard diversity more as a “tie breaker” for choosing among people with roughly equivalent records, while others would reach further. I am confident that no one on our faculty would discriminate against a candidate because of his or her views. Our hiring goal, just as that of all other law schools I know, is to hire the most skilled, able teachers for our students.

Color me rather skeptical that most members of the UI faculty are seriously interested [beyond perhaps in response to the p.r. fallout from the lawsuit against the school for ideological discrimination] in pursuing hiring faculty ideologically on the “right” as a goal, much less that they’d prefer a “right-wing” candidate over an equally qualified candidate on the left, much less that any significant number would “reach further” than that. Some of my skepticism is an artifact of my understanding of what goes on at most law schools, but it’s also a product of this paragraph from the New York Times:

According to Ms. Wagner’s lawsuit, the law faculty at Iowa in 2007 included a single registered Republican among its 50 or so members. The Republican professor was appointed in 1984. In 2009, The Des Moines Register found that there were two registered Republicans on the faculty.

But maybe I’m too cynical. After all, not every conservative or libertarian law professor is a registered Republican (conversely, not every Republican is libertarian or conservative), and not everyone who gets an offer for an entry-level or lateral position takes it.

There is at least [...]

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Iowa’s Prof. Hovenkamp Comments on Dismissal of Ideological Bias Suit

The University of Iowa College of Law’s Professor Herbert Hovenkamp, offers the following statement on the dismissal of Teresa Wagner’s lawsuit against the school alleging ideological bias in hiring.

While the Wagner viewpoint discrimination trial involving the University of Iowa College of Law has generated considerable attention, the only principals who have spoken to the press are associated with the plaintiff. Since the court has now entered its judgment for the College on all counts I feel free to say a few things. I was on the faculty appointments committee that was responsible for hiring in our Legal Analysis, Writing and Research (“LAWR”) program the year in question.

Teresa Wagner is a quiet and pleasant person whom I came to know during the hiring process. To this day I have never seen her speak of her political beliefs or even ask questions or make comments at faculty seminars, which she occasionally attends. This was not a case where we debated about whether to hire someone with a particular ideology. The subject never came up, and I learned of her views for the first time when her complaint was announced.

The federal jury trial in this case was conducted by Senior District Judge Robert W. Pratt, an excellent federal district judge. The opinion dismissing the complaint, which was issued March 8, recites very few facts; however, the trial was videotaped in full and can be viewed or downloaded here.

The trial and public record show the following:

A. During the year in dispute we hired one “permanent” entry level LAWR faculty member and one “adjunct.” The stated job criteria were strong academic credentials, a preference for teaching experience, and a “job talk” presentation to the faculty. The “adjunct” position, which did not require a job talk, was a one

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Ideological Bias Suit Against Iowa Law Dismissed

Teresa Wagner sued the University of Iowa School of Law alleging she was passed over for a faculty position due to ideological bias. The jury rejected some of her claims but deadlocked on another. On Friday, a federal district court dismissed Wagner’s one remaining claim and rejected Wagner’s motion for a new trial. Here are reports from the Des Moines Register and AP. The judge’s order is here.

NOTE: I’ve posted a comment from Iowa’s Herbert Hovenkamp here.

UPDATE: Paul Caron rounds up coverage of the case here. [...]

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