A Law School Lacked and Lost
I fell in love with the place my first week there. I was a Visiting Professor at the University of San Diego School of Law, taking a sabbatical from my home institution, the University of Queensland in Australia. That was back in January of 2013. My wife and I were to spend the first half of that year in San Diego and then, as we are both native-born Canadians, I had a second sabbatical post lined up at a university in Toronto. Of course, I knew back then that USD had some of America’s best-known scholars of the theory of constitutional interpretation known as “originalism.” I’d been invited to a few of their conferences already, and I had met Professors Larry Alexander, Maimon Schwarzschild, and Steven Smith at symposia and conferences in Australia.
So it was, then, that after a big family 2012 Christmas in Toronto we put one of our kids on a train back to his Canadian university, and the other on a plane to Belgium for a bit of French immersion before she too moved across the world to start university in Canada that fall. Then my wife and I got into the second-hand car we’d bought in Toronto and drove the 2,600 odd miles to San Diego.
That car trip alone was a magnificent experience. We had no planned stopping points and would get on and off the interstates as our mood and the weather dictated. We had arranged four nights of San Diego accommodation, and so our first task was to find a half-year rental. By pure fluke, an earlier USD sabbatical visitor had told me we’d be crazy not to rent on the little peninsula-cum-island of Coronado, home of the big US naval base, across the inlet from San Diego proper. It was connected by that curving, sweeping bridge that had been built when Ronald Reagan was Governor of California. So that’s where we looked, and that’s why we ended up in an apartment in the Coronado Shores complex, with the famous Hotel del Coronado on one side and the Navy Seal training base on the other.
It wasn’t just the fact we walked out our door and ten seconds later were walking or jogging on one of the best beaches in America. Nor was it that an old-fashioned, single-speed granny bike, basket and all, could get you anywhere you wanted on Coronado. It turned out that I could get from Coronado to the law school at USD by public transport. This was not a common practice at USD, and in fact I raised more than a few eyebrows when I told people I took public transport, but each morning my wife would drop me at the ferry. This was free to residents of Coronado. Twenty minutes later, having had views of moored aircraft carriers, other ships, and the San Diego skyline, we were docking beside the retired aircraft carrier, now a museum ship, USS Midway. A five-minute walk from there had me on a local light rail known as “The Trolley,” and after a short ride, and a ten-minute walk up a steepish hill, I reached the beautiful USD campus with its panoramic views across the whole city. The whole trip, from ferry to office door, was under 45 minutes, and possibly the best commute anyone could take anywhere.
All those factors were just icing on the cake, however. What really made my sabbatical visit were the academics at the USD law school. They were smart and nice, and very hospitable. Perhaps that is not all that unusual at any law school, but what I had not really expected was the wide range of views I found across the faculty. Say this sotto voce, and outside the earshot of any present-day university administrator, but the USD law school even had a critical mass of what you might classify as “conservative legal thinkers.” As someone who had done his law degree in Canada, a Masters at the LSE in London, has taught around the anglosphere, and has seen first-hand the collapse of viewpoint diversity on campuses around the anglosphere, this was wholly unforeseen. In fact, with about a quarter of the then USD law faculty being right-of-centre types in all their various manifestations, I soon learned that the 2013 USD was probably the most conservative law school in the US (with the possible exception of George Mason, though there the iconoclasts are mostly libertarians). But everyone seemed to get along. Each Friday there was a staff seminar, and these crossed the gamut of topics and viewpoints and were excellent.
There was the big yearly originalism conference that attracted the top originalists in the US. There were occasional weekend conferences put on by the Law and Philosophy Center, by the Law and Religion Center, by the Constitutional Originalism Center, and by a non-law school political science outfit across campus. All these were incredibly stimulating too. Add in the rousing informal discussions, in the hallway and over lunch, and for someone like me, this 2013 USD law school was as good as it gets. (Here let me lay my cards on the table and announce that I am a right-of-centre person who’s broadly Humean when it comes to philosophical positions, Hartian on legal philosophy, and generally in favor of smaller government, lower taxes, lots and lots of free speech, and an end to cancel culture.) The students were good, too. After seeing the intellectual community at USD, I readily understood why this small private Catholic university had a law school that Brian Leiter around that time had ranked in the top 25 for the quality of its research.
A noticeable chunk of the credit for this had to go to Larry Alexander. Many readers will know Alexander for his published work on free speech, on the intentionalist variant of originalism, and on criminal law. He was also the long-time editor of Legal Theory (and also, for a while, of Law & Philosophy). Alexander and his wife, both Yale Law School graduates, had come to San Diego in the 1970s. Larry had been hired by USD and though his stature and reputation grew and grew, he stayed put at USD his whole career. Instead of leaving for greener pastures, and no one doubts he could have gone anywhere really, he stayed and worked at bringing in better and better people to the USD law school. Just look down the list of those whose names you recognise at USD, or who are former USD law profs moved on to newer pastures, and chances are that Alexander pushed to get him or her. I remember over coffee one morning during that 2013 sabbatical, Larry said to me, “the only thing you want to do when hiring is to try to find someone better than you are.” Alexander was, and is, a merit guy, not a group representation advocate.
Fast forward now to the second half of 2019, just before the pandemic. I had another sabbatical owing and wanted to go back to USD. With help from my friends Maimon Schwarzschild, Steven Smith, and Larry Alexander I got another offer and grabbed it. Indeed, my wife and I did the same thing—we drove from Toronto and stayed in the same complex in Coronado. (I have now crossed the US by car diagonally four times, taking four different routes, well over 12,000 miles all up or half the earth’s circumference. I’d do it again in a minute if events allowed, because driving across the US is something not to be missed.)
Things at USD law school this second time were not quite the same. A bit before my arrival, Alexander had written a short newspaper article with Amy Wax on the virtues of middle-class and bourgeois values—finish high school, show up to work on time, hold off having kids till you’re working and have a reliable partner, that sort of thing. I’d seen a draft before it went into the Philadelphia Enquirer and thought it wholly unobjectionable. This was just a listing of the Protestant work ethic virtues that experience showed delivered good consequences to anyone who signed up to them. But some had insisted on seeing the piece through the prism of identity politics. Some colleagues at USD had attacked Alexander. Others had come to his defence.
When I got there, I learned that what you might describe as the conservative wing of the law school was now largely being kept off key law school committees, most importantly the hiring committee. For me, the 2019 sabbatical was as excellent as the one six years before. But I sensed this island of comparative tolerance for iconoclastic, nonconformist, dissident—save time and call it “conservative”—viewpoints had noticeably shrunk. And if future hires were to be judged through the prism of “diversity and inclusion” and not on straight-up merit, well, you could guess how many conservatives would be hired. The USD law school would slowly become like all the other 200-odd accredited US law schools where Democrat-donating and voting law profs outnumber Republicans by double figures to one. This little sanctuary of open-mindedness would wither and die.
A few weeks ago, I learned that some of the stalwarts of the USD law school, well-known and long-standing professors of law who certainly could not be described as “progressives,” had all put in their notice to take up the three-year retirement option. USD was losing Larry Alexander. Losing Steve Smith. Losing former dean Kevin Cole. Losing Gail Heriot. All of them had endured enough. Yes, there are some nonconformists still there who haven’t announced their take-up of the retirement pathway, and will battle on. But we can’t kid ourselves. As that unexpected sanctuary for dissident conservative outlooks, USD was in its death throes.
Hiring was now to be done explicitly with an eye to “diversity” (though of course, not the sort that has anything to do with outlook). In the not-too-distant future, this small private law school will be much of a muchness with other like law schools. Its market differentiation was occasionally to grab up people whose views made being employed harder than their qualifications would otherwise warrant. Taking advantage of this market failure, as it were, allowed USD to punch well above its weight. Alas, seemingly no more. The capture of law schools by one dominant outlook rolls on to the peripheral outliers, to that wonderful USD law school that gave me two magnificent sabbaticals. And I cannot tell readers how sad this all makes me. I thought of Shakespeare and Much Ado About Nothing.
That what we have we prize not to the worth
Whiles we enjoy it, but being lacked and lost,
Why, then we rack the value, then we find
The virtue that possession would not show us
While it was ours.