The Association of American Law Schools Needs More Political Diversity

In the week that a new organization, Heterodox Academy, was established to press for more ideological diversity in academic life, the learned association in my own profession showed how much it is needed. The Association of American Law Schools (AALS) sent around a notice of its prospective annual meeting, highlighting its most prominent speakers. Of the thirteen announced, none is associated predominantly with the Republican party, but eleven are associated with the Democratic Party. Many are prominent liberals. None is a conservative or libertarian.

Five are judges, including Stephen Breyer, all appointed by Democrats. Another is the incoming Senate leader of the Democrats. Three others contributed predominantly to Democrats. One for whom no contributions could be found held a fund raiser for President Obama. Another worked for the Democratic side of the House Judiciary Committee during the impeachment of President Clinton.

It is true that Michael Bloomberg is also speaking. He has been at various points a Democratic and a Republican and is now an independent. Perhaps the AALS thought that a single person could create diversity through his many political avatars! But seriously, Bloomberg, who has crusaded for gun control and limitations on permissible ounces in a sugary soda, does not resemble a conservative or libertarian. He ran as a Republican in 2001 for Mayor of New York City because it was the nomination he could acquire.

Now my point is not to disparage the highlighted speakers. They are all eminent men and women. Some have even taken positions friendly to ordered liberty.  Deborah Rhode has made excellent arguments for the deregulation of the legal profession. But when everyone shares largely convergent premises, intellectual discourse is stunted. And the lack of diversity is particularly embarrassing in the legal academy. As Professor Nicholas Rosenkranz of Georgetown Law School has observed about the homogeneity in law schools:

it is a fundamental axiom of American law that the best way to get to truth is through the clash of zealous advocates on both sides. All of these law professors have, in theory, dedicated their lives to the study of this axiomatically adversarial system. And yet . . . . on most of the important issues of the day, one side of the debate is dramatically underrepresented, or not represented at all.

And in my experience many of the panels at the AALS reflect the same lack of political diversity as the highlighted speakers. Indeed, the Federalist Faculty Convention, which is held at the same time as the AALS, assembles panels with a wide range of viewpoints that are more fruitful and entertaining.

The obliviousness of the AALS to need for political diversity stands in stark contrast to its relentless push for gender, racial, and ethnic diversity. Harvey Mansfield once noted that diversity in academics often approximates that in the famous Coca Cola commercial—a group of people from all over the world singing in happy harmony. For discussion of law, however, dissonant chords would create more memorable music.

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on September 26, 2015 at 15:01:01 pm

[…] Cross posted from Library of Law and Liberty […]

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on September 27, 2015 at 07:44:40 am

Professor McGinnis, this is a perfect occasion for you to consider something new: physics-based ethics leading to civic law. Please go again to my blog. Comment on it. Use your expertise and influence to bring it to the attention of the constitutional law academia.
“Ordered liberty” according to Findlaw a http://dictionary.findlaw.com/definition/ordered-liberty.html is
freedom limited by the need for order in society NOTE: The concept of ordered liberty was the initial standard for determining what provisions of the Bill of Rights were to be upheld by the states through the due process clause of the Fourteenth Amendment. Today the Fourteenth Amendment is generally seen as encompassing all of the guarantees bearing on fundamental fairness that are included in or that arose from the Bill of Rights rather than a small class of provisions essential to ordered liberty.

Wikipedia perhaps helps at https://en.wikipedia.org/wiki/User:Neutron/Ordered_liberty .

the determination of whether a right is "implicit in the concept of ordered liberty" has become the basis of the doctrine of selective incorporation, by which the Court has decided which rights are enforceable against the states under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, and which are not.

The entire concept is a Burkean usurpation of the preamble to the constitution for the USA and a rebuke of Federalist 84’s complaint that Bills of Rights err by listing rights currently deemed valid, leaving the problem of validating the ones not listed. (In other words, the Bill of Rights was a mistake.)

It seems you complain herein about the loss of Christian domination of the legal world and its apparent loss to Supreme Court opinion. But you overlook that America’s legal system, still the best in the world, would cause the demographic to change from 100% Christian to only 70% Christian and declining. Christian domination has been on the wane since the vain attempt to codify it in 1954 with the prayer “under god” in the pledge of allegiance. Acts of fear tend to bring woe.

The Middle-East refugee crises will spread Islam at a pace never imagined. What does this mean to American law? It means it must admit that just as it takes good judgement to glean liberating advice from both the Torah and the Bible, there are people who glean good judgement from the Quaran. I would not know where to find it, but just now, I am curious as to divorce rates and family abuse rates from the best educated Muslims versus the best educated Christians. I haven’t a clue, but my impression in my home town, a college town, is that Muslim families are families.

The idea of physics-based ethics comes from a 1941 speech by Albert Einstein, and his only example is that we don’t lie to each other, not to comport to some Supreme Court opinion, but to minimize death, expense, and misery. America’s most prevalent way of lying is to separate in factions, not paying attention to over-arching goals. Part of the problem is that the preamble is a civic sentence but Christianity labeled it “secular,” commonly meaning “non-religious.” It’s a lie and lies bring woe.

I am trying to persuade you to lend your talents to establishment of the culture the preamble sought in 1787 but was denied in 1788 with ratification on promise of a Bill of Rights and prevented in late April 1789 when Congress initiated legislative prayer. You lament civic morality being replaced by Supreme Court opinion. You could dedicate your talent to using physic-based ethics as the mediator for formation of a transcendent culture of a civic people, who focus the “axiomatically adversarial system” on the combination no-harm personal liberty and domestic goodwill—PL&DG instead of government oppression through Supreme Court opinion.

Among “We the People of the Unites States” there is a majority, I speculate 70%, who want PL&DG rather than repression by the USA, for example, it’s Supreme Court. We call that super majority A Civic People of the United States. We want people to start asking themselves, “Am I of the 70% who want PL&DG, or am I in the 30% who want alienation?

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Phil Beaver
on September 27, 2015 at 12:36:08 pm

McGinnis ALWAYS supports candidates on the left. Yeah right.

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tony smith
on September 28, 2015 at 11:39:27 am

[…] McGinnis has an excellent post over at Library of Law and Liberty (andcross-posted at our new Heterodox Academy), highlighting the […]

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on September 28, 2015 at 15:52:34 pm

OMG!!!! - a BURKEAN usurpation - now that really tops the cake. Your potential (hoped for?) customers are probably not going to buy it.

Now - off to Coventry with you, good sir!!!!

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on September 28, 2015 at 17:19:46 pm

Therein you have your own clue. One of the major limbs of obsolescence is Edmund Burke. Give Albert Einstein a chance: he came long after Burke and Paine.

Now look, I like Burke's notion that the land connects us, but forget common law and Christianity: collaborate for no-harm personal liberty and domestic goodwill--PL&DG. Do you prefer law to PL&DG?

Is PL&DG what you are laboring against in these rebukes?

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Phil Beaver
on September 28, 2015 at 18:37:58 pm

"Is PL&DG what you are laboring against in these rebukes"

No; but i am reminded of the wisdom of a recently deceased American philosopher, Yogi Berra who is said to have remarked that, "You can observe a lot by just watching."

My watching has convinced me that *personal liberty* oftentimes devolves into licentiousness and domestic goodwill is ripe for varying interpretations, as in *redistributing* one person's accumulated in order to provide an endowment for another person.

That and the fact that some of your commentary seems to go far afield from the essayists' topic(s) - such as comments on "marital fidelity", etc when we were discussing the wealth of the "alleged" 1%'ers.

"Give Albert Einstein a chance: he came long after Burke and Paine."

To my mind this is a clear indication that you a) do not understand the position or the continuing relevance of Burke and tradition if you posit the currency of Einstein as the ultimate refutation of Burke.

But such is the position of those who believe that, unlike countless others before them, they can make the world over and because they have reshaped the world for their happiness, they are, ipso facto, happy (apologies to Walker Percy for the bastardization of his comments). It becomes correspondingly easier to achieve this makeover if we simply disregard the inherited traditions that have brought us this far.

So that is my objection(s).

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on September 28, 2015 at 19:14:25 pm

The problem you are seeking to remedy, the ideological one lopsidedness of the law schools is not an accident that can be remedied by nose counting. It is embedded in the ethos and structure of the modern law school. Being a graduate school within the modern university, law schools are pressured to adopt the professional norms of the research university. Therefore, law professors are pressured to produce research that conforms to the methodologies of the other departments and colleges, e.g. theory (f/k/a Marxism), and econometrics.* This means they must be trained up in those methodologies, which are more or less indistinguishable from politics.

Further, the modern university is the child of the leviathan administrative state. The state has created the university by endowing it with money and privileges. The university is in turn bound to glorify the state and justify it intellectually. The justification comes in the form that is sometimes called relativism but is in truth nothing more than the Nietzschean will to power. In law schools it is called "legal realism". It is the only sauce that allows the body politic to swallow garbage like the Supreme Court's abominations of last June.

I realize this is a depressing prospect for people who blog on a site dedicated to Law and liberty. But, diseases cannot be treated unless they accurately diagnosed.

As proof of this I offer the following observation. I formerly practiced law in the area known as commercial law. I read a lot and went to bar association meetings. Reading the history of this field, the most important intellectuals were on the faculties of Yale and Chicago. Today, it is quite apparent that the faculties of the nations top ranked law schools have no interest in Commercial Law. They regard work like reviewing an analyzing case law and drafting statutory language as beneath them. The reporters of drafting projects for articles of Uniform Commercial Code in the past twenty years have been on the faculties of un prestigious institutions ranked in the third tier. Te articles are published in the law reviews of those schools.

I want to add an historical and institutional perspective:

From Alexis de Tocqueville, "Democracy in America", V. I Ch. XVI: Causes which Mitigate the Tyranny of the Majority in The United States.

This aristocratic character, which I hold to be common to the legal profession, is much more distinctly marked in the United States and in England than in any other country. This proceeds not only from the legal studies of the English and American lawyers, but from the nature of the law and the position which these interpreters of it occupy in the two countries. The English and the Americans have retained the law of precedents; that is to say, they continue to found their legal opinions and the decisions of their courts upon the opinions and decisions of their predecessors. In the mind of an English or American lawyer a taste and a reverence for what is old is almost always united with a love of regular and lawful proceedings.

This predisposition has another effect upon the character of the legal profession and upon the general course of society. The English and American lawyers investigate what has been done; the French advocate inquires what should have been done; the former produce precedents, the latter reasons. A French observer is surprised to hear how often an English or an American lawyer quotes the opinions of others and how little he alludes to his own, while the reverse occurs in France. ... This abnegation of his own opinion and this implicit deference to the opinion of his forefathers, which are common to the English and American lawyer, this servitude of thought which he is obliged to profess, necessarily give him more timid habits and more conservative inclinations in England and America than in France.

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Walter Sobchak
on September 28, 2015 at 19:55:56 pm

I appreciate your comments and understanding. My groups proposes to change from opinion as the basis of civic morality to physics-based ethics. Physics is energy-mass and space-time from which everything including law emerges. Opinion-based laws can be based on lies: Physics-based ethics does not respond to lies or laws.

Take for example, forming opinion so as to satisfy gay pride. Civic unions are adequate recognition. However, marriage involves protection of children. A child emerges from the single cell formed from a woman's ovum and a man's sperm. The single-cell owns its heritage. The emerging child does not negotiate contracts respecting its heritage. The fact that the Supreme Court opinion did not consider the child's dignity and equality is a civic travesty.

I don't know that physics-based ethics favors dignity and equality of the child, but want to debate it, as well as all civic morality with appreciation for physics-based ethics.

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Phil Beaver
on September 28, 2015 at 20:11:53 pm

Gabe, I appreciate the effort you spent objecting. I wish you had googled Physics-based Ethics: Civic Examples

Or I had thought to suggest it earlier.

I wish you no-harm personal liberty and domestic goodwill and am working on a theory to establish it for A Civic People of the United States.

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Phil Beaver
on September 28, 2015 at 21:12:22 pm


I rather liked the comments - even if I do not agree with them in *application.*

You are correct with respect to the problem of "reason" versus "precedent." In fact, some argue (and I agree) that the American Revolution was predicated upon the British failure to adhere to precedent -i.e., the failure of the Parliament to acknowledge / recognize time honored precedent respecting the "rights of Englishmen" (and thus the American Colonists).

In a sense, we may be currently confronted with a phenomenon of *dueling* precendents; that is to say that the precendts established by contemporary courts appear to take "precedence (pardon the pun) over those precedents which may be linked back to the *immemorial past* as the British Jurists of the 17-18th century were fond of supposing / arguing.

One should ask, as is implied in your commentary, "Should one adhere to a precedent that is quite simply wrong?"

In effect, should we turn our constituent law (which limits government discretion, etc) into common law which allows to judge to either invent, rely upon or quote newly minted precedent in contradistinction to those traditional conceptions of liberty and obligation that have *propelled* us this far.

Mr. Beaver, with his critique of Burke, and his salutary reference to Einstein as a more current thinker, would appear to be prepared to discard that which has enabled us to achieve that which he have achieved - but are currently hellbent on eliminating.

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on September 29, 2015 at 12:33:54 pm

"Mr. Beaver, with his critique of Burke, and his salutary reference to Einstein as a more current thinker, would appear to be prepared to discard that which has enabled us to achieve that which he have achieved – but are currently hellbent on eliminating."

Mr. Gabe,

Take a broader view and realize that what I am saying is this: All human endeavor must have as its objective discovery of the emergences from physics, understanding the underlying laws, and working to benefit from the overall understanding. Physics is energy, mass and space-time from which everything emerges. By everything I mean the universe, cosmic chemistry, life, awareness, reasoning, lies, ethics, religion, law, civics--everything emerges from physics. In 1941, Einstein made that statement in his subtle way. His only example was not lying. His justification was benefiting by not lying.

Long ago, humans observed the sun and imagined it a god, even though they did not have the word "god." Many intellectual constructs emerged, and when humans discovered the sun is a natural nuclear reactor, the constructs could have been terminated, but they remained with a new vision of their god. Note that the first step in the discovery of physics is imagination; someone thinks they observed a phenomenon and imagines an explanation. If it is important to them, they will devise ways to test the explanation. Failure may mean that what was imagined is not so or beyond that, there was no phenomenon--only an intellectual mirage. However, if the phenomenon is not proved to be a mirage, the original imagination, in this case, that a god controls physics, remains in its original status: a first step in the discovery of a phenomenon. Since there is no evidence that a god controls physics, the status of the imagination is static. However, because the no-harm constructs that have emerged comfort believers, there no more civic incentive to discourage them than to discourage interest in the fine arts or sports or sexual promiscuity any other no-harm human interest. However, physics does not respond to imagination: physics is. A person who imagines surviving a tsunami may lose his or her life.

Like all other human endeavors, the law must pursue benefits from the emergences from physics--must be aware of the discoveries, assess potential benefits, and adjust accordingly. Tradition vainly attempts to hide the evil by which it was established and use coercion and force to maintain the status. For example the papal bulls of 1452 through 1493, from which England mimicked the doctrine of discovery were evil. Empowered with guns (and unexpectedly disease), Europeans invaded lands, took them from the inhabitants, and distributed the wealth among themselves into posterity. In addition, they purchased slaves from the African slave trade and encumbered their colonies with the evil of slavery--African, Amerindian, and European slaves.

Only the papal morality could have promulgated such evil. According to physics, a person cannot own the labor of another person except by force. Everyone today is aware of the evil of slavery in America, but no one writes about who began it. And no one writes about George Washington's plea for the elite powers to recognize the Continental soldiers. That injustice carries forward to today. However, the doctrine of discovery is maintained by the legal system holding property as the basis of elite governance in America. The original, arbitrary distribution of this country must be reconciled,

Thus, Mr. Gabe, what you refer to as redistribution is a false defense of a fundamental flaw in this country's founding. The legal scholars need to come to grips with physics-based ethics and make the necessary adjustments. What will happen if my plan takes hold is that without the burden of keeping the labor class down, American capitalism will soar to highs never before imagined. Please focus on that, Mr. Gabe.

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Phil Beaver
on September 30, 2015 at 22:13:05 pm

You appear to be rather taken with Einstein. Fair enough. Yet, I must ask are we to look to the Einstein *ethics* of General or Special Relativity?
Or are we to venture into quantum physics? - where things are always possibilities and may be in two places at the same time or even (as recent experiments appear to evidence) that a particle may arrive at its destination BEFORE IT LEFT its origin point.

This would make for shaky system of ethics and civic association.

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on October 01, 2015 at 15:02:17 pm

Gabe, you're out on a limb, twisting in your fantasies. (That's not the objective truth--merely my opinion.) You could read for understanding, which I encourage.

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Phil Beaver
on May 10, 2016 at 08:23:36 am

[…] of American Law Schools Needs More Political Diversity, Libr. L. & Liberty (Sept. 26, 2015), http://www.libertylawsite.org/2015/09/26/the-association-of-american-law-schools-needs-more-politica… [http://perma.cc/R7F6-R94H]. Advocates of intellectual diversity sometimes use other terms such as […]

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on September 20, 2018 at 06:07:25 am

[…] faculty positions. The response? Crickets. The unwillingness of the ABA and AALS, due to their liberal orientation, to take action to address this grave problem in legal education calls into question their fitness […]

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Ideological Balance Is Essential to Sound Pedagogy in Legal Academia

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