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Stanford Intellectual Diversity Conference

Stanford Student Chapter

April 8, 2016

Universities have traditionally provided a forum for the free exchange of ideas between and among faculty and students. But how robust can discourse be when most everyone shares the same thoughts and opinions? How can a professor tackle a controversial research topic, or a student express an unpopular opinion, if he or she is terrified of finding or saying the "wrong" thing? Join the Stanford Federalist Society for a one-day conference exploring these questions through the lens of intellectual diversity and political correctness in academia.

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9:00 a.m. - 10:55 a.m.
Recent Research in Intellectual Diversity

Stanford Intellectual Diversity Conference

Topics: Civil Rights • Culture • Education Policy • Philosophy • Politics • Free Speech & Election Law
Stanford Law School
559 Nathan Abbott Way
Stanford, CA 94305


Event Video

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To foster meaningful discourse on intellectual diversity in academia, it is important to begin with the facts. Is there a lack of intellectual diversity in academia? How big is the problem? Professors Jim Lindgren, James Phillips, and Jon Shields review some of the latest research on the subject.

This panel was presented at the Stanford Intellectual Diversity Conference on Friday, April 8, 2016, at Stanford Law School.

Opening Remarks

  • Dean M. Elizabeth Magill, Richard E. Lang Professor of Law and Dean, Stanford Law School
  • Mr. Eugene B. Meyer, President, The Federalist Society
  • Introduction: Mr. Jonathan Mondel, Co-President, Stanford Student Chapter
  • Introduction: Mr. Michael Rubin, Co-President, Stanford Student Chapter

Recent Research in Intellectual Diversity

  • Prof. James T. Lindgren, Professor of Law, Northwestern University Pritzker School of Law
  • Prof. James C. Phillips, Former Visiting Professor, BYU Law School
  • Dr. Jon A. Shields, Associate Professor, Claremont McKenna College
  • Moderator: Prof. G. Marcus Cole, William F. Baxter-Visa International Professor of Law, Stanford Law School


Event Transcript

Good morning everyone! Thanks for being here at the 2016 Federalist Society Conference for Intellectual Diversity in Academia. Thank you all for being so early on this, unfortunately, rainy day. So, we’d like to get things started with Dean Magill, who is here to give some opening remarks. So please, help me welcome Dean Magill.

Well, thank you! Let me…Let me join the Co-Presidents and thank you all for being here, for taking the time to participate. I know many of you have come from far away. And some of you have come from Newcombe building right across the way. And we appreciate all of you who’ve come from away to participate in this conference. I want to thank the Federalist Society Student Leadership, (some of them are here, but not everybody, I think, yet) for hosting the event, as well as many other events they host on our Campus. They add enormously to the intellectual life of Stanford Law School by bringing in speakers, and having debates and conversations that enrich the community intellectually just  in numerous ways. So we benefit greatly from the work that they do, that helps the school.

So, it’s no secret to anyone in this room that American law schools attract the majority of faculty and, in some cases, the students from the left-hand side of the political spectrum. This trend is reflected in the profession at large. A recent study found that lawyers are more liberal than doctors, bankers or accountants. They are not quite as liberal as journalists or tech workers. But we all know that the classroom, full of people who think the same, is unenlightening. And it’s actually boring. So, the diversity of ideas and viewpoints is actually absolutely essential to the classroom, to students’ learning, to the advancement of knowledge about law and legal reform, and to the dynamism of any intellectual community.

Another reason this is an important conference to hold is central to our profession, the legal profession, and law schools and the academic study of law, are the values of fair-mindedness, tolerance and rigorous debate. The structure and the confines of this debate have been very controversial and hardly contested on campuses in these last few years, that in a couple of weeks the common law centers are going to hold an interesting symposium on that question. Here, at Stanford, I think, we are far from perfect . Uh… I can unequivocally say that, I think, our community is deeply committed to free speech, to the diversity of ideas and respectful debate. I have been lucky enough both here, at Stanford, and at the University of Virginia, where I both was a student and taught, uh, to be challenged and engaged by people whose viewpoints conven… pushed conventional academic wisdom that advanced our knowledge about law, and selfishly made my life  a lot more interesting than it would have been otherwise. I am incredibly grateful to be at Stanford with two colleagues, Pam Carl and Michael McConell, for example, Two of the sharpest and most divergent legal minds in academia today, as evidenced by the fact that both of them has been …have been suggested as successors to Justice Clium. I am really sorry I am going to miss, uh, Dean Cramor this afternoon, but he is embraced on the standard, he said: “for the embrace of lively engagement among faculty and students was really important to the conversations that continue at the law school today. I will be spending my time this afternoon recruiting admitted students, trying to convince them they should come here, which they should”.

So there is a lot to be said about the state of intellectual diversity on campuses… uh… how... why it matters, whether its expanded or contracted, how to foster it more vigorously.  But I am going to leave that to the group of the preset panelists who are going to here from today. I think that the fact of this conference  being here, at Stanford, as the fact that you’ve made time out of your schedule to come and to commit to this ongoing conversations, makes me hopeful about legal institutions and the profession.

I am going to welcome now Eugene Meyer, who is going to say a few words of introduction.

Uh... uh… Thank you, Dean Magill. Thanks to the Stanford Law School and…that’s also to our Chapter for hosting this. I am going to be incredibly brief but what I want… what I do  want to say is, this general discussion, general question of intellectual diversity  is important for all the reasons Dean Magill said. And I am even going to say one more thing , which may be slightly more debatable, which is, when you look at the Presidential Campaign we’ve had, where 75 or 80 per cent of people on one party, and 40 or 45 per cent of people on the other party, supporting candidates who are, quote: “outsiders” in some sense and seem as though many of those, who order a stylus now,  their views are not being heard, not being listened to, whatever you make of the candidates, who are getting that support. I think that’s a pretty strong statement about what happens when the views are not listened to. And I think one of the places where something like that can start, in truth, starts in the academic world, where people should be listening to a wide variety of views, especially to the views they don’t think they agree with. So I am very pleased with this conference here and I hope it can help encourage more attention to genuine intellectual diversity. So with that, thanks very much, thanks for the work and doing this and look forward to the conference.

Thanks very much to Dean Magill and President Eugene Meyer. With that, let’s start our first panel on Recent Research in Intellectual Diversity in Academia. Please join me in welcoming Professors Cole, Phillips, Lindgren and Shields.

Well, I want to welcome everyone at Stanford and to this Federalist Society Conference on what, I think, is a really important topic. It’s often said that a real disbelief is the one, which persists despite the facts. And in this particular case, it’s hardly determined whether or not the belief that there’s balance and diversity in legal education or higher education generally, unless we explore the facts. And that’s what this panel is designed to do today.

So, we have three distinguished panelists who’ll help us explore the facts, surrounding intellectual diversity. First is Jim Lindgren. James Lindgren is a Professor of Law at Northwestern. He… uh… holds a BA from the LA, and a JD and a PhD in quantitative sociology from the University of Chicago. That’s a fancy way of saying he’s a statistician. He is a Co-Founder of the Section on Scholarship in Association of American Law… Association of American Law Schools and he’s a former Chair of its section on social science in law. He is also famous for his work with respect to the exposure of Michael Bellesiles and Fall From Grace: Arming America and the Bellesiles Scandal, which is… probably should be in Yale larger now.

We also have James C. Phillips…Oh, I should say one more thing about Jim Lindgren before I move on. Jim Lindgren is actually wanted in several Western states for being the person who taught me to play golf.

James Phillips is a law clerk for the Honorable Thomas B. Griffith to the US Court of Appeals for the DC Circuit. He also recently clerked for the Honorable Thomas Lee, the Utah Supreme Court… uh… the Utah Supreme Court. He holds… uh... uh… a JD and a PhD from the UC Berkeley from John Brown’s in social policy, and he has written several articles on intellectual diversity in higher education.

Jon Shields is an Associate Professor at Claremont McKenna. He holds a BA form the University of California in Santa Barbara and a PhD from the University of Virginia. He specializes in abortion law, American conservatism, American culture and politics, religion and politics, and he’s the author of Passing on the Right: Conservative Professors in the Progressive University. For the…uh..is that…it’s  out now from the Oxford University Press.

OK, so, we’ll start with Jim Lindren.

OK. So, let’s have some fun talking about numbers. I guess I’d like to start by…by saying that consistent with what Dean Magill said, Stanford’s statement on diversity, uh, seems to be geared to the graduate school. I couldn’t find more general one that wasn’t for the graduate school. But… since a wide range of opinions, perspectives and experiences is essential to educational excellence, a diverse community of scholars asked unexpected questions and contributes divergent insights, pushing the forefront of knowledge further and faster. That doesn’t sound like most American Universities that…that I know. And I guess, academics are pretty slow to recognize that… the typical groups are being pushed for…from the … action,  and the typical groups, who have  actually had the diversity of viewpoint, based on life experiences or other views of the world, are actually quite different. I favored both for the reaction and diversity hiring. I think they both are positive. But you think that, you know, in many occupations they are absolutely consistent. But in academics they are not consistent. They have not been consistent for decades. And yet, people are still acting as if they were really in the same thing. The bulk of legal academics are white men and white women. Typical white men vote republican, typical white women vote republican. Exit polls in the 2012 election showed that run BB Obama by 14 per cent among white women. Not even close in the election that Obama won. In the ‘90s, when I first started working on this, white women tended to be democrats. That’s not true any more.  So now we have a great bulk of legal academics and academics generally, in which we have very unrepresentative people, who, supposedly, bring their life experiences, based on their ethnos, city, and gender to bear, and yet, that’s not happening. OK. Now, let’s start with the slides. So, this panel is supposed to be an existing work…In 1993-1994 I surveyed back on the top of the law faculties. I’ve got 710 responses, which is a 66 per cent responsory. I assure you, polling meets these days. National polls give it up  5 or 10 per cent. The only people, though, that still get up in the averages of real social survey are people from the NORC at Chicago. Um, and then, I found 13 per cent of republicans would lean republican. 80 per cent were democrats who would lean democrats… uh...  leaning democratic. Then, in 2013, I took the data on race and gender, and applied it to the ABA data on ethnicity. Um, I’m sorry, I took the political religious data from the earlier survey and said: “So, if white females were just as democratic as they were in the mid ‘90s, what would be the make up effect of this today?” And if we do that, 11 per cent of republicans will remain republican, 82 per cent of democrats remaining democratic. Merely… that’s because we have more women and more minorities. Then beginning of the studies of political donations in top schools, 29 per cent of law professors made donations, 15 per cent exclusively donated for republicans, 81 percent to democrats.

Banica has a study, uh, has actually a bunch of studies, but among them was one on campaign donations among lawyers, and found that the strongest predictor of local donations would be law professors, stronger the gender of being a civil rights or environmental lawyer. So the idea Bonica is just reflecting... reflecting that lawyers are not quite true. Lawyers do… are one of the more left wing occupations but nothing close to academics. Phillips has done content analysis scholarship and exhausted an entity level stuff, uh, some people can’t be assigned, so just looking at the people who can’t be assigned..uh..14 per cent leaning right, 86 per cent leaning left. Then on entity levels, Doctor John Mirrett did a ‘99 Yates survey of six-years new law hires, 10 per cent identified as conservatives, 75 per cent liberal. Phelps, who also looked at resumes and scholarships in law professors, found 12.7 per cent republican /conservative, but there were some that were unknown.  The earlier study looking at 1997, the 25 of most underrepresented groups of law professors, compared to the full-time working population, not highly-educated or lawyers, reigning by percentage difference. Not one of them was an ethnic minority, and that was 1997. And if you break down by ethnicity, gender, party and religion, the largest subgroup in the U.S. population was white female protestant republicans. There was none in the sample of 710 law professors. It Should have been in about  90 representatives. Now, uh, I was taught how to do charts, and I really, really apologize for this. I hadn’t realized how terrible this would show. So it’s more for me to look at, and for you, I’m  thinking, you’re really, really, really in embarrassed consequences. There is a… This is uh…This is actually ABA data. So, there is no surveys, nothing…  All I’ve done is compared two comparison populations. So, these are groups that work.   Our significant… uh… uh ... Here’s the law professors … So, it’s 30. And these are tenure track law professors. Kind of tenure track. 36 per cent of female, 64 per cent of male. The full-time working population that are English-fluent, it’s 54 per cent male, 45 per cent  female. So, you can see in this, in this upright down, females are underrepresented. Lawyers, lawyers to be few per cent of females. So law professors, just like you, are over represented. And basically, if you look at these low comparison groups, the only group which is significantly overrepresented against both groups is age-unspecific males, and even that is not a very arched  overrepresentation. If you look at the ones that are underrepresented, the only groups are these small groups of two or more racists. So, that is mostly how the ABA data counts.  So, they weren’t even represented by a single person from faculty. So, it’s a very small… So, basically, what you have is the groups that are either represented fully or underrepresented at…at superbial, uh, merit, it’s not consistent. So, there isn’t a consistent underrepresentation or overrepresentation. We tend to think of underrepresented groups, but pretty much everybody is in at least one significant underrepresented group and one significant overrepresented group. It’s interesting if we talk… if we can hear ‘umbilical’  by, well, almost 1500 of years. Intersectionality. If the intersectionality involves being demographic, almost every group is going to be ...uh, is going to be overrepresented. Here’s democratic and to devolve republican, on the intersectionality almost every group is going to be underrepresented. This is the group… uh… This is ethnos, party, religion of law professor with 2013 estimates applying to the ‘88 data. And the most underrepresented group is white Christians… not… none of Latino white Christians. They are underrepresented by about 25 per cent. Uh, if you wanted to get up to parity on a typical law faculty, forty in the samples bigger than that, and you didn’t find there anybody, you would have to hire 25 white Christians on every law panel to get the numbers up to parity. If there are Christians, overall you would have to hire 26. If you’re trying to put up with the working population, you would have to hire 56 Christians on every faculty, affording to get up to a…to parity. Now, perhaps, one of the things is… So maybe the people…this is the analysis that basically assumes that white females are just as republican and democratic as they used to be…white males are just as republican and democratic as they used to be, just as republican… What if you’re opting that the odds of being a republican were…were 50 per cent higher now, in the… in the peak it ended up. Still you would find that the republicans still would be, right?, the fifth among the… uh… uh… even if they get the upper 50/15 per cent higher and higher republican, then it’d be 16 per cent. And so, these are the underrepresented groups. As you can see, there are very few that are minorities. That’s only the minority  ”other religion”, which is a tiny group. There is underrepresented on this list a minority… Jewish… a couple of fairly small groups. Then these are the overrepresented groups…So… here are the overrepresented groups. You can see that there are groups at all represented in supposed   comparison population. Minority atheists and let’s see,  and democratic Jewish, no surprise there. White Jewish, no surprise there. I didn’t want to have too many categories in here, so these are only defined by one or two groups. So, I didn’t break down the white female democrat to the white democrat, and female democrat and so forth. And you see that the group that…has the most is democrats, not surprisingly. And they’re most at that atheists circle, and you can see that this first group up to here is all atheists, uh , oh no, democrats or atheists. Um, were overextended. OK. Now, uh… Phillips is… James Phillips is going to be talking about, mostly about the difference, and why this could happen. I just want to go with a little bit of […] views in the present day in academics. You know, that republicans and conservatives are dumb, or that they don’t…they want to take money or the things like that.  We don’t sustain this action but for point of mind, I just wanted to show, and actually the fact that you don’t know this already is the function of just how…uh … I’ll give facts about bias in the academia. There have been dozens of studies, that have done… that have done dozens of surveys, that have done general social surveys that included verbal IQ tests only. And for the English speakers, this part was drawn from a really original IQ test and there are ten questions and if you’d hear the whole period, which they asked… I didn’t… I didn’t have enough data from  the 14-days testing, 1978 to 2012, republicans got 6.1 questions per act on the…out of 10. Democrats: 5.6 and it’s 5.48. If you just look at the more recent data, you can see that the democrats have come up a little bit in a… in... they almost got independence. Now, if you look at liberal conservatives, they already find liberal our on top, uh, in that act. But conservatives are in the middle and moderated to a... So even on this there’s no reason to say that conservatives are less… uh… less polite than liberals. Then, just, we look at the liberal democrats vs conservative republicans, and you find it that conservative republicans were higher overall and just 100 of a point that is not significant, even , even if they sit here… Then, uh, how, uh…What kind of things do value in a job. There is …uh…great data on this, have been asked thousands of respondents over the years, and in one of them are the great things that you might want in a job: high income, no danger of being fired, working hours are short, lots of free time , chances  for advancement,  work important and gives a feeling of  accomplishment. I have encountered  the literature on social psychology that says, that conservatives are inclined to safe jobs, higher income, and uh, and uh, and uh…and their questionnaires on this. For example, data’s completely opposite to what people report. They generally use underrepresented samples.   Des Healy find it that here up may be sorted, uh, one, but most importantly, to lower. So, democrats have a, have a very… slightly higher wear markers of a…very, very high income for the job. And then, for conservatives and also for liberals. And if you limit it just to those who have graduate profession at least, then you find that ours is not superiors’, never mind. Then you find republicans are older and more likely to go for it [inaudible]. So, there is something in this poll to make suggestions a bit precarious or impossible. Uh, even if overall republicans will value money more, maybe within, with higher education. Uh, uh, with graduate profession at least it might. Then, there is also a literature on altruism, and GSS say the altruism scale, the things like: have you donated blood, return money after given too much change, giving money to a charity, volunteer work for a charity and a lot more. You know, on that scale, the republicans score higher than the democrats, conservatives score higher than liberals, conservative republicans higher than liberal democrats. So my opinion here is that there is some discrimination of effectively hiring. I think it’s possible that culture plays the role that it really…that the matter of discrimination is so massive that I don’t think it could all be culture. I do think there is a very little discrimination of tenure, once they are in the institution. People, who are being conservative, tend to do preventional work, use preventional techniques, and I don’t think that they are.. Once they find out that they are not monsters, people tend to treat them pretty fairly,  I think, on tenure. I do think there occasionally are people who don’t get their tenure. Actually, I would, I would have gone to one of the conferences in another top law school, I could even name some. But , uh, the person out there was very decent to come up with the panel  and talk, and he said “you know, at this law school I just don’t see that it has, you know, that politics has any effect on hiring new […]. And I’m sitting next to the audists and I am like copying, saying… I once have got to write a memo to get somebody tenure that I didn’t want tenure as a social being. And I wrote it up:” Were the tenure experiences worth top schools?” And he was the example, but used: ”Or you can get tenure at this great post with zero publications between the time you’re appointed and the time you get off a tenure. And he had a tenure, paper that was published after, with zero publications in his subdivision. And so what I wanted to ask was: “Do you think or admit it, that you would have been tenured, had you been on the right? And I think his answer in this case looks like: “No, he is a special wonderful person as he is by all account”. And I did …would have to start recognizing, that the discriminated against groups historically are not necessarily the same as the underrepresented groups. We only have to look at Jews to realize it, who could be both overrepresented and discriminated against. Or Asians, in… certainly in Stanford, where undergraduates Asians are huge out of proportion to population. It does not mean you’d have to be extruding at some point just because you’re overrepresented. Just because you’re discriminated, uh, does not lead to the fact you’re likely to be underrepresented. Uh, uh, and so that two-mindednesses based on diversity does not include the profession. You have the profession we’re in incredibly slow, so, which leads us to conclusion.

Thank you, Jim. [applauding]

Oh, sorry. So, common empirical perspective is more interesting that they are so few is why they are so few. And so, to try to get to some analytical leverage on this, I want to give you an exercise on historical imagination. Let’s assume that you’ve come to America in the early 1950s, knowing nothing about this country, nothing about its past, nothing about its current condition. And you fall in love with baseball. And you go to a game after game, after game, after game, and you quickly notice something. There are not very many African Americans baseball players in the major leagues in the early 1950s. So you start to kind of wonder “why?”.  And the first thought is, well, maybe there aren’t many, because they are just not that interested in baseball. There are just other things they’d rather do.  And then you would notice all of the African America children playing baseball on the sand lots.  And you’d see all the black leagues. And you’d quickly realize it’s probably not a lack-of-interest problem. So then, maybe you’d theorize…well, maybe…maybe they just can make more money elsewhere?  It’s an issue of economics. But you’d probably soon realize as you looked around the country that in the early 1950s the economic opportunities for African Americans were rather poor. I’ve just put it a bit of an understatement. And the professional baseball players made a lot of money. So, it’s probably not a money issue. Then you might think, well, maybe they are just not as good as the white players, they just can’t quite…in general…uh, uh… cut it, and so very few make it to the elite levels of the game. But then, you’d notice that very few African Americans baseball players in major leagues in 1950s were really good. We’re talking Ernie Banks, Willie Mays, Jackie Robinson.

The proportion of “hollow femurs “ amongst  African American baseball players in 1950s is so much higher than among the white players. And the average African American was so much better than the average white player, that you’d soon realize, it probably was not a talent issue. And then. you’d be left with the only other explanation, some form of discrimination, and as far as baseball in 1950’s goes you’d be correct. Now, without driving any kind of moral equivalence between the 1950’s  baseball and race and today, let’s come to a different profession and a different era. I think that Daniel Gilbert at Harvard captured on all these hypotheses why there’re so few conservatives and  libertarians in academia generally and in law academia, when he said that liberals are more interested in new ideas, or are willing to work for peanuts or are more intelligent. What I call the Brainpower, Interest , and Greed Hypotheses. Brainpower isn’t they just can’t cut it intellectually. The interest hypothesis that the life of the mind of the Ivory Tower is just not what gets conservatives and libertarians’ juices flawing, or the Greed Hypothesis is “they can make more money elsewhere”. And the reality is, a good lawyer in this country can make more than a law professor. Now, well, Herald Bloom has a reaction to that… or Paul Bloom, sorry. He says a lot of irony in this area. The very…The same people, who are exclusively sensitive to discrimination in other areas, are often violently antagonist when it comes to political orientation, bringing up clichés and arguments they wouldn’t accept in other domains: “They aren’t smart enough”; “They don’t want to be in the field”. And I kind of like this quote from Pascal Emanual Goldberg, where he says: “I’ve had the following experience more than once. I am speaking with a professional academic who’s a liberal. The subject of underrepresentation of conservatism in academia comes up. My interlocutor admits that this is indeed a reality, but says the reason why conservatives end up underrepresented in academia is because they don’t want to be there. They are just not smart enough to cut it. I say “That’s interesting.  For which other underrepresented groups do you think that’s true?”.  And uncomfortable silence falls. Now it’s not that the brain power, the greed or interest hypothesis could not be correct. That isn’t an empirical question. And so when I’m trying to get out and see, which of these four different potential hypotheses, bringing in the Discrimination Hypothesis, seems tobe more supported by the data. So let me describe the data here. I am looking at faculty, traditional tenure track faculties. Well, I ‘m excluding clinical professors and legal research and writing professors at the top 16 law schools, according to U.S. News. I took this data in summer 2011. And for the kind of outcome variable I’m looking at publications’ period and citations’ period. Because a reality is, at least, at elite law schools, scholarship is the name of the game. That’s how you get positions, that’s how you get tenure, except maybe in a few instances.  That’s how you get a reputation and so I’m looking at publications’ citations. We’ve also got demographic variables, traditional qualifications and control variables. And then measuring political orientation. How was it measured? It was measured with looking at resumes, so either organizational affiliations … Did they put fax phone on the resume? Is there a work experience?  You know, did they do a summer at the NRA? And looking at campaign donations and voting registration records.  A little that is scholarship, a scholarship is a kind of a fuzzy signal, and so unless it’s a really clear signal, scholarships really didn’t add much. But that’s, that what goes into political orientation variable. OK, so, what would the data have to look like to see whether one of these hypotheses is supported over another. So the Brainpower Hypothesis…uh.. intelligence or ability is almost always normally distributed. So let’s say that we have a normal distribution of ability for non-conservative and libertarian law professors. Uh… with on the right being higher, and on the left being lower. What it seems to serve the libertarians if they are less able or less intelligent, their normal distribution would shift left. And then, what you’re going to have, you’re going to have a cut off point for making it end to legal academia. You’ve got to be…to have a certain level of ability to be able to get in. And so , only a very few of the conservatives and the libertarians would make it in the door. And compared to the pool of law professors, they’re going to be on the lower end. So that’s if, uh, that’s what the data would look like if the Brainpower Hypothesis is discredited. If this is a Greed Hypothesis, it will look similar, maybe not quite this strong. Basically, what you gonna have is you gonna have conservative libertarians going to where they can make most money. So the best are not coming to the academy, they are going to in-house counsel or big law firms or something like that. And so you’ve got the people coming to the academy or those who couldn’t make more money elsewhere. So, they’re going to be a little bit lower on the ability pool.

Then, if it’s the Interest Hypothesis  (that has nothing to do with the ability), you’d just have fewer that are interested, but otherwise you’re gonna look the same, so they’re gonna be randomly distributed amongst  the professor pool , as far as ability goes.  So you shouldn’t see any difference between  conservatives libertarians, and those who are not, as far as this outcome measures. And if it’s the Discrimination Hypothesis, then your distributions of ability are gonna pretty much essentially overlap or gonna be identical. But what you gonna see is for the liberals, where, I guess, liberals and moderates are two unknowns, so the non-conservatives and libertarians, they gonna be cut off here. But for the conservatives and libertarians the cut-off is gonna shift to the right. OK, there’s fewer who gonna be able to make it in. But those who are new –coming are gonna be those who do very well. OK, so you gonna see that it gonna look like 1950s baseball. OK.   So that’s what the data would look like if you knew these hypotheses are correct.  So let’s look at their qualifications. Conservatives are much more likely than liberals and, the great is, unknowns, the people who couldn’t be coded/quoted, which is about 27 per cent (we couldn’t put them into one camp), are much more likely to have Supreme Court clerkship, are slightly more likely to be on lower view, compared to those  to those, who are recorded liberals, moderately more likely than the unknowns…a little bit more likely than the unknowns, uh, being, coming from higher ranks institution for the JD  (higher meaning more prestigious),  and moderately more likely than the liberals, and moderately less likely than the liberals who have a PhD. And somewhat significantly less likely than the unknowns who have PhD. So, Cava makes back on the qualifications, kind of depends on where you want to put the weights, so maybe a little bit more qualified but not the strongest evidence one way or the other. And now let’s get in, though, to the publications for your … and citations for your end. And let me set this up, I know that most of us went to law school to avoid numbers, but I need to explain this. So, in causal inference, you know, in the ideal world , which can never happen, is you have somebody do something and then you reverse time and have them do the other thing, and then you see the difference, right? Because we can’t do that, we run experiments, but so often, some of the most important things you can’t run experiments on? Which would include this, to be a fascinating experiment. And so, you start with trying to use fancy statistics, to try to compensate. Basically, what you want to have, you want to have apples compared to apples. It’s hard to say that somebody graduated from Yale, and somebody graduated from, uh, I’m not gonna name any other school but Potsdam University. Law schools are quite the same, right? It’s hard to say, that somebody who has a Supreme Court, who has a Supreme Court clerkship, and somebody who had a state trial clerkship, are quite the same. So, really you wanna compare apples to apples. In order to do that, there are various techniques, those matching techniques, those weighting techniques, those propensity scores. And those things that at the end of the day are trying to get you looking  at apples, apples, and the only thing that differs is the one thing of interest. It’s right here, which is a clock of orientation. When you do that, you lose data, right? So, you see over here lower and lower – this is regression. This is often what people will do. And regression doesn’t get rid of anything. So it ends up comparing apples to oranges and trying to make it work. And you can see that those lines there, the 0.25 above the below, you don’t want to have variables about that. Outside of those line, because then you aren’t really comparing apples to apples, you’re getting apples to oranges. So some of these other techniques, the US news matching, the course and exact matching, Fransisco raining/raiding/reigning, are getting rid of data that hasn’t matched very well get, until you get, you’ll see model 79 there. There we’re really comparing apples to apples. So far as the outcome variables are gonna be concerned, those who’re the ones, are gonna be the most accurate. The danger is when you trim data, your standard hairs blow up and they may not be of statistical significance. So, the train off the statistical significance versus accuracy in a variable. Fortunately, here, all the models were statistically significant. So, we didn’t have that problem. So let’s look at additional complications per year for conservatives and libertarians. The rain/reign is anywhere from about  0.4 to little over 0.8, again the models of the far right of the weights, you think, are more accurate, more apples to apples, but you could look at any of the models if you’d like. And what does this mean? This means over  a 5-year or 6-year tenure period, conservatives and libertarians at these institutions are publishing anywhere from 4 to 5 publications moreover that period. That’s a lot. That’s a lot. Especially if you think about having, maybe, one publication per year for querying to get tenure.  Which, frankly, in some places this is not the case. Uh, if that’s…you know, that’s a lot more over a three-year tenure period or any tenure period really, any, any period. So, but you know, these are publications! There’s a thousand law drills in this country. You get almost anything published, right? So maybe conservatives and libertarians are just publishing garbage? So, so, if they are, maybe they are not getting cited so much, but that’s not the case. Conservatives and libertarians are getting cited in an appending of Tomorrow, you’d prefer if you were from 13 to 37 more times per year. And to put that in perspective of the professors, there are over a thousand professors in this data set, they are averaging being cited 41 times per year. So, I get a substantial increase here. Now I can... You can think of reasons why the conservatives and libertarians are cited more? Maybe there’s a smaller network and they are citing each other to drive some issues up. Or maybe you got a contrarian voice and so, you know, you’re exciting the opponent before you’re trying to destroy them.  But the reality is, there’s one explanation, that explains this outcome and the publications outcome, and the qualifications outcomes. All right, so what? I think there are three problems, and I think another panel is going to get into this, but, you know, who cares? So what, they’re few? And maybe, maybe that is consistent with the discrimination. Well, I think there is harm to liberal law students. I think there is potential harm to conservative libertarian law students, and some of them are mentoring in clinical opportunities, and I think there’s potential for an Echo Chamber in Legal Scholarship. I just want to hit on the first point with this quote from the former American Constitution Society Chapter President at Berkeley. If you don’t really know the AC axis like a color to fit like rights to liberal equivalent. He said: “Attending a law school, that is actually not ideologically diverse, that actually undermines the value of education. There are early divides in the law over very important issues that we as lawyers will face when we enter the legal field as professionals. When we only bring up one side to caricature and then divide it, a few things happen. First, a very few students are ideologically predisposed to those sides feel marginalized, thereby undermining their education. More importantly, by treating those opinions as such, we are not seriously evaluating them and will be extremely ill-equipped to grapple with them in the real world. I am liberal, but hoped to be able to engage with conservative ideas in the law school, and have been deeply disappointed with the perfunctory and cavalier attitude with which we assess conservative ideas at my law school. I think we will be much worse as practitioners and, ironically, much less capable of advocating for liberal ideas because of serious failure to seriously grapple with conservatism in our law school climate.”.

So, findings: conservative libertarians are small minority and in my samples they are 10 per cent. They are somewhat more qualified than their peers, based on traditional qualifications (and are you with that?). They do publish more than their peers at substantial and statistically significant levels. They are sided more than their peers at substantial and statistically significant levels. So, the conclusion? The data is inconsistent with the Brainpower, the Greed or Interest Hypothesis. Particularly, the Brainpower Hypothesis. The data is consistent with the Discrimination Hypothesis, so when I see discrimination, we often think of invidious discrimination, the data does not have anything to say about that. There are different ways that discrimination occurs, and I don’t know why this is happening here based on this data. But it’s consistent with discrimination. But it’s one study. Social sciences, not the natural sciences, no law of gravity here, we can’t, it’s hard to say you’ve proven something. You can say that something is more consistent or less consistent. More studies are needed to see if that data is also consistent with this or if a point is in a different direction. Thank you!

Thank you! Jon Shields.

No, I don’t need desktop. Well, I am going to talk about bias in the social sciences. Conservatives are quite scarce in the social sciences. There’s about 5 per cent of social scientists who are conservatives. And most of them are concentrated in economics. They seem to gather …and cluster.  Conservatives are so rare in the social sciences that they are outnumbered by Marxists. Indeed, they are badly outnumbered by Marxists. About 80 per cent of social scientists self-identify as Marxists, compared to fewer than 5 per cent social scientists. Given these numbers, you might not be surprised to discover that conservatives are less well-represented in the social sciences than all current targets of affirmative action. Why are they so scarce? Partly because conservative students steer clear of the social sciences as undergraduates before they even begin to think about the graduate school. One study found that undergrads’ politics is the best predictor of their undergraduate major choice, with conservatives tending to gravitate into the natural sciences. It’s possible, of course, that there’s just some reason why these, you know, conservatives prefer the natural sciences. Perhaps, there is something about their cast of mind that pulls them toward engineering, and not sociology or history? But it’s also the case that we know that conservatives tend to feel quite uncomfortable in fields that touch on politics. So, for example, there is a climate survey , done at the University of Colorado, which founds, which found that republicans are, were more than three times as likely as their democratic peers to feel intimidated when they shared ideas in their social science courses. Another study, this is and orthography of conservatives activists in…on college campuses. It found that even they tended to avoid course work in the social sciences. And I think that’s especially striking, because these are the students who are self-evidently interested in politics. Right? They’re very active in…in conservative politics. I think conservatives discomfort with the liberalism of the social sciences. It’s also evident, uh, uh, in a gravitation to PhD programs in economics. Economics is the one social science that is really quite open to conservatives, it’s the one social science that really looks like America, with roughly an  equal proportion of republicans and independents, and democrats. And then, when conservatives do enter fields like history or political science, they tend to gravitate to the subfields that are the least politicized. Right? So in history they are much more inclined to become, to enter the subfields like the ancient history or military history, and avoid areas like the XXth century history.

Now perhaps these conservatives are just being sensible, right? After all, conservatives do face some bias in higher education. And it’s not the implicit subconscious variety, many fears are an obstacle to women and minorities in higher education. Research shows that the surprising number of liberal professors will say: “Yes, we prefer to hire democrats over republicans”. In one study George Eansy found that some thirty per cent of sociologists acknowledged that they would be less likely to hire a job applicant if they discovered that she was a republican. Indeed, they have said they preferred to hire communists over republicans. But that’s just far less sociology, right? The other fields are on that way. Now, that’s not the case. Eansy found 15 per cent of political scientists and 24 per cent of philosophers said they would discriminate against a republican job applicant. At least 30 per cent of all professors in all the fields Eansy studied said that they would discriminate against the members of NRI. And he found that these professors were less tolerant of Evangelicals, partly, I think, because Evangelicalism is a proxy for the cultural conservatism that is particularly disliked in academia. So nearly 60 per cent of anthropologists, 50 per cent of liq. Professors,  40 per cent of political scientists and sociologists, um, say they would be less inclined to hire a job applicant if they discovered she was an Evan…Evangelical. That political bias was so easy to detect, surprised some social scientists. When Eul Inbarr corroborated against his work  by finding comfortable levels of bias among social psychologist, he expressed surprise. He said “Quote!” Usually, you have to be pretty tricky to get people to say they discriminate against minorities. Other research suggests that liberal professors sometimes act on these conscious biases. So, Stanley Raffman and Robert Lictor found that socially conservative professors tend to work at lower ranked institutions than their publications record would predict. Philips, here, found that conservative and libertarian professors tend to publish more than their peers. I think this finding is especially striking, given that other works suggest that it’s more difficult for scholars to publish work that reflects conservative interest and perspectives. Then, some of this bias, I think, is driven by misinformed prejudices, right? New Grossa showed that surprising number  of professors would say “ Yeah, you know, we think that conservatives tend to be closed-minded, and that’s why there’re so few of them about.” If we… To correct such biases is a worthwhile go. But even if they disappear, even if every last professor in the country right stopped believing or didn’t believe that conservatives were somehow closed-minded, I think, there would still be political bias in academia. I think, it would  still exist because it also expresses an intellectual orientation. One that inescapably, I think, shapes the way we assess scholarship. Our politics, after all, inclines us to find some questions more interesting than others. It inclines us to find some explanations for social and political phenomena more compelling than others. I think because conservatives have to often likened, uh, bias in academia to more irrational kinds of prejudices, right? Like gender and racial prejudices. They have been too slow, I think, to appreciate the interact…uh… the durability of these biases and too impatient with their persistence. If we tell conservatives to pass on careers in academia until it’s… until it’s bias-free, we’ll be waiting until Kingdom come. I think reducing political bias to racial bias or gender bias, uh, also prevents us from thinking about the vital function that political biases serve in higher education. Right? So while the community of narrow-minded big exes  rarely edifying, an academic community of professors with very biases. I think this is essential to the very health of the social sciences. This is because none of us can rely on our fellow-partisans to identify flaws in our own thinking. As the NYU psychologist  Jonathan Height explained, quote :” Some people…”, “Smart people make really good lawyers, but they are no better than others at finding reasons on the other side.” The biggest problem, then, with academia, I think, is not really political bias. The problem is that there’s not more out there. Academia’s biases are just too one-psyche. OK?  A political hummed , uh, sameness, I think, in lots of, in lots of disciplines, undermines knowledge seeking itself. Because it makes it hard to those communities to converge on the best approximation of the truth. Some might say, well, yes, but social sciences are self-correcting over time. That may be true in some happy cases. But those corrections can take a very long time. I’ll give you one quick example. Sociology spent decades downplaying the importance of two parent households before finally admitted that family structure kind of matters. It kind of matters if there are no dads around the houses.  AS one conservative sociologist, we interviewed, told us. He said, quote: “ Basically, sociology had to be dragged kicking and screaming until it recognized that broken families aren’t a good thing. It’s like if you ‘ve had to spend decades and millions of dollars on  NSF grants to convince astronomers that the sun rises in the East.” Many more of these examples are now being assembled by a group of social scientists who have, uh, who are collaborating in a new project, called Hetero Docs Academy, which is really the first large scale effort, uh, to think about the ways that political sameness undermines knowledge seeking in the social sciences. Perhaps this effort in time will convince more academics of the importance of having more conservative thinkers about in academia. I’ll close briefly by just thinking what kinds of things can be done, uh, in a short term. If this situation is good going to the improve it’s gonna be, it’s gonna be liberal, so we gonna have to do something about it, because they rule academia. And I think that, uh, they can do a few things to help make higher education, make the social sciences somewhat more inclusive, right? If hiring committees, liberal faculty might question their natural preference for like-minded colleagues, right? As I suggested earlier, lots of professors currently say they prefer to hire liberals, right? Like-minded people. Before they start sorting through resumes, departments might consider advertising in fields that are more popular  among conservatives, like military history, political history, The American founding, the sociology of religion, natural law in history. Feel, uh, most, uh …higher and easier area is, would also bring balance to a university curriculum, so dominated by race and gender. Universities might also experiment with having visiting professors of conservative thought, as the University of Colorado is currently doing. Even these modest reforms should help conservatives feel more welcome in an academia, and not just in some of its quarters. When that happens, I think the University will deepen its public legitimacy and increasingly rare and fragile good in our Polarized Age. Thank you.

I want to give an opportunity for each of you to comment, but I also have questions for each of you. I want to, hopefully, to get addressed in your comments. So, I’ll just throw them out, uh, throw them out to you,  uh, in, in, in, in, seria….uh.  

So, for Jim Lindgren,    you use interchangeably democrat and republican, liberal and conservative to make some of these points. Years ago, I remember, you had done some work, demonstrating that those concepts don’t really map on to each other. So, for example, you’ve demonstrated, I think, at one point that some of the most racist views held in society, or held by conservative democrats, and some more liberal views were held by republicans. So, I’d like for you to address that in your comments.

Jay Phillips, I want to ask whether there might not be some type of selection bias involved in the qualifications measurements. Uh, uh, so you hear these arguments that you can’t really rely on. Clerkship or clerkship quality when considering candidates, because republicans have controlled the White House for so long that  the more republican or conservative judges, when that’s the key issue and you also hear this with respect to the Honors Program in the Justice Department . That because the republicans have had such a strong “woho” on the White House. That they’ve basically grid the game, so that now you have more conservative law clerks  coming out of law school.

And for Jon Shields. Are you suggesting that we have the typique… we’ve reached the typique point, can we ever get balance if, uh, if, uh, what you say is true about…particularly about the social sciences, but also, I would suggest, in law schools.

So maybe we’ll start with you, Jim.

OK, so, the, uh, if your interpretative is equating the two, because I didn’t make any distinction between them, I, uh, uh… What you’ve discovered is absolutely a huge part of what I’ve been working on. But the a, I, I, uh, to make my case I didn’t mention them because that would [leave me no time] at all. And I though to be fair, I should show the areas where liberals did well. And not just pretend that there’s nothing to this overall thing. So that was only for purposes of balance  that I was in…that was not equating . So even if you pick the way of measuring that’s  the least congenial to the point I was making, you still don’t have conservatives at the bottom. Now a bunch of things really clicked for me. One was James Phillips left out the neatest table in his, in his paper , in which he shows that in their early years , uh, uh, people lean right are somewhat more productive and more sided.  As time goes on, liberal productivity falls in half, and republican productivity stays the same. For 30 years, so three decades in your career republicans are publishing at the same level they did when they were young, while democrats are falling in, falling roughly in half. And that’s the neatest chart in the whole thing. As It really suggests also the point you’re making about commitment to the ideas. And I’ll come back to you in a second. But then, for Shields , One of the things that you’ve implied in this, it’s definitely true  answered  worse in other areas than in law. Law with its double-advocate kind of, uh, uh, habit and a style of teaching is actually better than in a lot of these other fields. So I don’t think we should lose sight of it, as things could be worse. Now as far as the cluster in economics, I thought that the data, and I’ve just been looking online in donation there, that economists were 75 per cent democratic. And so they even know there’s much more diversity in other fields, they still lean democratic. The other thing is that if you look at Stanford, Stanford, this is just from talking the fact, when the other side don’t have it.  I don’t have any way of actually knowing of political views are of the people there. But impression idea is the you’ve got 5, 6, 7 people who lean right. But pretty much all, but one or two, are in economics. So it’s definitely a ghetto in a sense. And really in this fac… on this faculty it needs to be broadened into other fields besides Michael McConell. Uh, Uh, one of the… you know, sometimes people have admitted, I have people actually… One very prominent libertarian was blocked after we got a unanimous vote of the faculty because of seeing a member of our faculty. Lobbied the Dean and said: “Don’t make the offer we can’t have”. So many of the people at Northwestern are conservative, partly because other people pass on them. You know, of our top 10 cited people, 6 are conservative. And there are probably 25 per cent leaning to the right on a tenure track. When I hear that they block, when I was shout/shown “we can’t way out people”, when I found out people had voted solely  because a woman who actually turned out to be a democrat  had, uh, was unwilling to talk about politics, they thought she was a conservative republican. They voted against her as they were able to undo that one.  And then of course the first thing she does is going… go work for that Quit and Transition Team, which she did two months, and two were, uh…so do it. And even thought she weren’t hiring, there are two people we hired that I think were … we've  got because they wanted to be committed to all, though go too high. I said: “well, I don’t know how conservative he is, I don’t think he’s very conservative but he is a closer clerk and unless he is and obvious liberal closer clerk, which there are many, you know, he’s probably not going to go as high as he could think. And we had another person in the home school, he said “don’t bother, we’re going to hire this person”. Well, the person, I think, is a liberal, had done a study and they were trying to find the police were discriminating, and you know, they sort of were able to find this little area, but basically they didn’t. And so it is very liberal tactly/factly, that was it. It didn’t matter how good the training was, didn’t matter that they mostly wrote about other stuff. Or take Tom Miles, Tom Miles at Columbia, who’s now Dean at Chicago. When he came up to Columbia, he was ...uh… he presented a piece on why felon voting didn’t matter. And at the appointments the Chair said to me: “you know, we have entire Institute, whose main project this is Duke Felon voting. You know, they might be interested in whether it’s worth doing. But they are not.” And you know, so there was no problem for him, he went to Chicago. And James Phillips, the piece that he did, I think is the best work in the field. He’ll be on the market in a couple of years. I’ve been saying right something that doesn’t have a political valence. How many people in the entry level have written the best paper in the field before they join academics? We’ll have a little experiment and see where James goes. But, you know, the schools that will look at him, UVA, Northwestern, maybe Chicago, Noterdame, George Mayson, Pepperdon, not a few schools that aren’t conservative, but are particularly open-minded, you know, BU, Alabama, Florida State, places like that. It’s a really tough market for someone who comes office doing  work that’s important and actually has a political valence.

Say SOS.

So I guess if you can do an experiment in this field, I will, Being a living experiment. So first, as well, quickly, I want to respond professor Cole’s question to professor Lindgren, because the life also implicates my piece and my coding. I think that that… Actually, political sciences have that found that the parties have separately largely. It used to be that, you know, you had  liberal republicans, you had conservative democrats and it’s not that you still don’t. but that the liberal conservative labels match up more than they used to with the parties. So, again they are not perfect proxies for each other,   but they are better than they used to be.

On the clerk, so two thoughts on that. First off, let’s assume that it’s easier for a conservative to get a clerkship than a liberal because there are more conservative or republican appointed judges than liberal appointed judges. I’m not sure that’s still the case now, but probably that was long enough for this pool of professors, that you could make that assumption. Well, we’re talking about different pools here. We’re not talking about who got clerkship, we’re talking about people who got higher to teach at top 16 law schools who have clerkships. And I have a hard time seeing that there’s going to be much difference there, but you can actually empirically look at this, because if conservatives are getting some kind of equivalent of formative action bump when it comes to getting higher as a clerk. Such that they are less qualifies and less able, but judges want ideologically compatible clerks and so they’re gonna hire a less capable, less able conservative to clerk for them. When you do the matching analysis and the statistics, that would show up, right? When you’re matching on clerkships, and you’re match two people of the same clerkship, the conservative should actually perform less than a liberal, because they got that kind of bump. And they are not actually at the same level, level, but you actually see the reverse. So, I actually don’t think that there is a problem because A.  Because we’re looking at the very eely pool. People who have got in clerkships regardless. And B. the matching actually corrects for that. And then finally I just want to say that…kind of offering a response to maybe how this can be corrected. And this actually isn’t the most positive thing, but in baseball the market was able to correct. Because once the dam broke, there’s a very simple measure of success. It’s called winning. And winning brings fans and it brings money, and so once somebody else has a Willie Mays, you wanna Willie Mays and you don’t care. Uh, we don’t have that in academia and in law school academia. What drives it is … There’s a lot of things driving it, but U.S. News ranking  drives a lot, and the U.S. News doesn’t take this into account. If it did, if intellectual diversity was built in the U.S. News rankings, then the market might be able to correct, then you could have moneyball. Right? But because we don’t have that, the market itself isn’t going to be sufficient to correct this.

So, Jon Shields, can you depress us further and tell us that we’ve reached the tipping/chipping point, and there’s no…there’s  a point of no return?

Well, say something optimistic, which is… I think there’s a long history out-groups becoming in-groups in academia, and actually economics is a nice example because , you know, in the post-war period economics was really dominated by Keynesians and then by the 1970;s you have people like Hayek and Friedman winning the Nobel Prize. And so, it’s , uh, you know, when I, we interview blocks of libertarian economists and they also think like “Gee, this is a much more friendly field than it would have been some decades ago”. And so, even is the aca… the other social sciences  were drifting left and becoming less friendly to conservative thinkers, uh,  economics was drifting right. And, Uh, and, uh… So, I think this speaks at least to the ability of higher education to change and to become more pluralistic over time. It’s kind of happening in sociology, in history, in these sorts of fields, uh… I think so, but it’s gonna take some brave conservatives to sort of take the plunge, right? I don’t see…I don’t see… I don’t see it getting better until that happens, right? And I think the encouraging thing is that they can succeed, right? There are challenges in the social sciences, there are obstacles to being  a conservative social scientist. Uh. But there’s lots of thriving successful conservative professors even in fields like sociology. Um…And…So I think it can, it can, it can be done, right? And I guess I am a little concerned about sort of the Fredefick II that come out of the right. I think there’s been a long history of movement conservatives, coloring university. I understand why they do it. But I think the concern is that it might inadvertently push young conservatives away from academia, and therefore helps some end progressives’ very troubled rule over higher education. So one of the things we hope to do in this book actually to provide a more clear-eyed view of this institution to young conservatives. Because I do think it’s an institution they can, they can succeed in.

So before we start taking questions from the audience, Jim Lindgren, you wanted to respond to..

Yeah, I want to respond to a couple of… one point responding to a point both of you made. This is a no-pressure point. You know , we’re, we’re  so isolated and so stubborn as a field that we’re ruling to resist even our self-interest. So it’s like Hollywood making political movies that nobody wants to see. You think that the market would discipline them, but they don’t seem to be getting the message.

Think of Elena Ketgut, she comes in in Harvard and students say: ”We need to be hiring more people on the left”. And she says , flying out to them “ No, actually we need more …we need to hire more people on the right.” And she does it. She shakes up legal education. Other schools start hiring people on the right for a while. And you know what? When she had… where there was a job she really wanted, guess what! They couldn’t even find people to testify against her. With united one for and one open  who went open who testified to explain their views but wouldn't oppose her. They couldn’t find enough reputable law professor who would oppose her. Because everyone knew that she had been incredibly decent open-minded. And it just shocks me that other deans don’t get it. They don’t realize that it’s actually in their self-interest to be decent and fair in a, in a hiring process. And even if that needs, they need to push their faculties a little bit and it makes some sense. It’s an all-in-one about economics. So think about Virginia. Virginia in 1960’s decided they wanted to get rid of Beukennen and Cows. Now, it’s not like they didn’t predict they could do good work. They had already done their Nobel Prize when they worked. And they decided they found a memo way to explain the strategy. Decided to drive a mile, and so they successfully did that. Cows said: ”We’ll stay just back Chicago’s offer”. They said no. And I..I have that… Coles told me that. So they had.. had ungood authority. So then, Virginia succeeds in doing this. They’ve never been one of the world’s top economics departments since. Once they succeeded in their strategy they have been, uh, backward. Do they feel the pressure? Certainly, to an outsider, I don’t see any, any pressure on the economics department at Virginia.

If you’d like to ask your question of the panel, we would ask you to step up to the microphones.

Ben Mohamen.

Thank you, colleague.

I have a question , maybe you may satisfy my intuitive vision of the right and true.

Go to base.  But I put up a lot of data about the discrimination., and being active as you have…good…good…

I don’t hear it…

OK, the…an impact of the tests on scholarship. The implication being , of course, that conservative voices in the academy have been, to some extent,  marginalized to silence. And a pretty compelling staff/staff and then I recognized the question of the diversity in the academy has the important norms of application, beyond and above to ask, but my two-part question, if you , if you included in the universe and the denominator of the data the scholarship and the research that has been done by…uh…at non-teaching institutions, whether in Manhattan Institute, Hudson Institute , or Hoofer or whatever.  Does the bias look so great? Because I can tell you as a newspaper reader. It appears to me that the bulk of the voices from the non-academic think tenses on the right. And second, if I’m right about that level point, does the funding in those organizations have a perverse effect perhaps of diminishing the enthusiasm of conservative scholars for the academy, in having them divert to non-teaching institutions like that.

Well, uh, yeah…These are very interesting questions. I don’t, I don’t know any, any hard data  that speaks to either question actually, so what I would say we could simply speculate it. I mean I think that , uh, the thin takes are important. I think they help, they do help run the conversation. But they also, they also may have the disadvantage of being somewhat get-a-wise too to those conversations, right? So, I think it’s very important for example to take the example of sociology, to have somebody like Brad Wilcox at the University of Virginia, right? To be a professor there. Because I think he is more influence, and  sort of more mainstream academic conversations, then somebody like Charles Murray …would have…even if they both would have broadly similar, you know,  takes on culture and lots of social questions.  You know, Brad’s publishing in sociology journals and engaging those, you know, his fellow-colleagues, he’s a part of the guild. And so, I think that that’s important,  right?, and that matters. And so there are limits to how influential think-tame types can be.  Whether  or not, you know, back to their AI or heritage is sort of syphoned/siphoned. Lots of conservatives out the academia, I don’t know… Maybe some… I don’t know of any data that speaks to that question, It’s an interesting hypothesis in question.

Professor Alexander.

Hi. So I’ve got a short question or all the questions are to professor Phillips. The first question is “what’s… what’s the overall meaning number of publications per year in your study?”

Let’s see, you said that conservatives are of an extra one and a half. I’m just curious what the base is.

Uh, I’m trying to remember…

Do you think it’s under one or over one?

I think it’s around one.

Yeah, OK. Correct.

So the one more question is, I think, so I really like your reply. It seems the true of analogical, but I like your analogy to baseball. But I want to push back a little bit on the discrimination. When you talk about the discrimination, I’m taking your ideas sort of entry level discrimination, how people come to be on the faculty, as opposed to sort of broader hostile and viral language academics operate. So let’s assume now for a moment. If, if…let’s assume that the hiring is actually fair, but there is , in fact, a wad/one  of, you know, sort of the obvious level of unfriendliness to conservatives academics, if you graduate to go and get published and so on and so forth. Then if I’d be into that interest hypothesis, or even the greed hypothesis  could be consistent with sort of Stewen Gusin, because he never solved selection of people who are, you know, equally talented, uh, but they are… and they are interested in the academia, but they don’t want to do it, given the hurls they see. Unless they are confident, they can/can’t  sort of beat the liberals in their own game. And to be.. and to have an unusual level of self-confidence  and, and, you know, sort of really peeking that they could succeed in the environment that ‘s often going to be hostile. Wouldn’t that produce the same kind of self-selection and skilling, that would be consistent with your results.

So two thoughts on that. One is: you’re telling a story, a self-selection story., that’s not independent of discrimination, it’s driven by the discrimination, right?

They’re far akind, Sir.

Well, uh, uh, even if it…Let’s say it’s a false perception amongst conservatives and libertarians that the academy is hostile, or that they have to overperform, they have credential up, and, and it’s not worth it. It’s, it’s still…That’s being, that’s being caused by either perception of, or the reality of discrimination. But. Would the data look the same? I guess you’d still…I guess if a conservative would say: “Look, there’s…I recognize there’s a higher bar. And only those who are really motivated are willing to do that.” Then it might look similar, but it’s…there’s still a discrimination story there. It’s a discriminating story that’s driving a self-selection, uh, uh, effect. So , I think if it’s pure self-selection, pure interest or pure money that’s separate form discrimination, then the data wouldn’t look like this. It only looks like this if the discrimination is playing a role, whether it’s the solo role or the intermediate factor driving  that, uh, uh, self-selection. That, then, I think, so, so yes! That’s true that maybe self-selection if it’s self-selection of those who are more…lower on the ability scale or saying: “Yeah, I mean, I’m just not gonna mail or make it. I have to be really, really, I would be Willy Nays. And I’m not Willy Nays. I can play with these players but I’m not Willy Nays, I a not gonna, I’m not going to try. I’ll just stay right back.  ”. But that’s still a… There’s still discrimination in that story.

So, so, that represents the following, a more, sort of ,a prior discrimination story as refers to a higher discrimination story, but also making /mending this with legite points of averageness. Its occur to probably somebody where, you know, most of those are really sort of dashing that field I always gonna appreciate whoever would make a present for this/his vis-à-vis, As I said it might figure out training for [these moneys] where she does reign. A bit on how it was important for you to see and for reservating the first 5 years.

Here’s, here’s you try, if you want to read it.



Also my publication rates were higher.

You have there about 1.3 -1.4 on the average.

So, in the first 5 years, uh, uh, there’s, there’s  a modest… conservatives and  libertarians are a little bit higher and then they pretty much stay straight for 30 years, maybe slightly going up, and everybody  else goes, liberals and the unknowns  are just…by the time you. By the time you get to 30 years, they’re joining about twice as much. Per year. So it’s a steady, you know, it’s a, it’s a tenure effect. Right? We see that  we’re after good tenure, productivity tends to drop off, but not amongst conservatives or libertarians. Is that because only the best are getting in? Is that because those who’re getting in are much more motivated and also have…are also the best in  a sense. It could be an interaction. It could be two things riding it but it… I still don’t think you can  tell this story with this data because it’s completely divorced from any kind of discriminatory  …

Professor Michael McConell.

I had two just numbers questions. First is, is this changing over time, so over the last 20 years getting better, getting worse, staying the same. And my second question is whether any of the data attempt to, to… separate a public law from other areas of law. Because my sense is in a public law is a way more secured than the rest and I would also say… just an opinion: public law is very diversity -of-use matters the most and where it exists the least.

So, I can kind of answer that. The first was, I don’t have data over time but my cross-sectional data from 2011 breaks. You can break people up by cohorts. If we assume that conservatives and libertarians, and everybody else were retire or leave the academy at similar rates. That’s and assumption, but if we assume that , then  a cohort of, say, form 30 to…who were hired 31 to 35 years ago. Would be a relative snapshot of what the academy was…at least the hiring was like at that time. And with that assumption , it’s relatively flat over time. There’s a little bit of, of little room but… and maybe there’s a slight optic …you know, when you’re getting to 30-40 years ago, as far as a few more conservatives and libertarians…but the pattern is pretty consistent over time. As far as public law versus non-public law,  I had an earlier piece that has a very small sample , I think, I had about 303 entry level hires in 2000 to 2009 that are now expanding to all entry double hires in 2000 and in 2010, but I don’t have that data, so in the earlier data the ratio of non-public law of liberals to conservative libertarians was something like 4.6 to 1, and when you’ve got into a public law it’s something like 9 to 1. So, so, roughly, double the ratio of liberals to conservatives and libertarians when you get into a public law than not. So, you know with the argument of the best scenario when you mean even more viewpoint diversity you have even less.

Doesn’t it support your… your… I’m sorry, Doesn’t it defy your conclusions with respect to the interest hypothesis. Right? Wouldn’t it suggest that corporate…uh…if this is law types or self-selecting.

So, the problem with data point is that you can tell two stories from it. You could tell that people are like economics, business…that’s where I gonna go because that’s what I am interested in. you can also tell a story, that’s where I wanna go because that’s where I’m gonna get a job, because they won’t hire me. They are not gonna hire a conservative to come teach common law. I would not…I’m not saying  that conservatives are not hired to teach  common law …but…but,,, so you can tell either story , right? And then the question is with any other data points, right? Is there a story that connects all of them? Or…you know…

Some data suggests that there’s fewer conservatives now in the social sciences. Their numbers have been going down since the 90’s, you know, as the World War II generation retired. Because that was a co… generational cohort that had more conservatives. And so…it’s getting a little worse.

Professor Delonzi.

Thank you. I think my prescription is ..perhaps this is gonna be the UCLA microphone. The panel emphasized almost exclusively two major parts of the university, the social sciences and the professional schools. Two other major areas, the natural sciences including, medical schools and the humanities, I know least about. The first of those, I’m inclined to think, probably that the problems you’re discussing are there, but perhaps less in degree, and perhaps less in the  adulterous  consequences. The humanities, though, it seems to me, if, if you had given figures, they’d probably be at least as stark as the ones that  John Shields gave. And it seems to me that in the consequences, they’re somewhat different, because in the law schools and, and in the social sciences. For the most part, I mean this is not entirely true, but for the most part. They are still studying the things that they used to study and that they probably should study. In the humanities, there’s a whole changing of the subject, so that, for example, in the UCLA and English department, which kind of lag  for some time and there’s still some kind of remnants from this had more people doing the traditional study of , uh, literary works. The hires in the last decade or two, as I understand, it did overwhelmingly queer studies, cultural studies and whatever one may think of those as disciplines, there is a displacing of reading great writers not as some sort of anthropological or other social scientific subjects, but rather as sources of truth, goodness and beauty. Those things just get displaced. So, Those are a couple of…I realize…that the work you, folks, have done has been in the area that it’s been. But I wonder if you have any thoughts on these other major parts of the university.

I’ll say something quickly about the natural sciences, actually. So there’s, there’s…In a lot of it , in the natural sciences there’s lots of ideological balance in faculties. The problem is that it just doesn’t matter very much there. Right, because… in the social sciences and in the humanities politics falls so close to the subject of inquiry, that politics is a permanent problem in those areas. In the natural science, it does on occasion, right? We can think of climatology or something like this. But often politics doesn’t matter very much, right? So, in fact, if, you know, if the physicists were dominated by Marxists, right? And sociology is balanced or something. Nobody would care really, I mean it would be sort of an interesting or  odd fact about physics, right?, that that was true and I guess there would be some social scientists who would be interested in making sense of that puzzle. But there’d be no David Horovitz blind-storming/or Barr-Epstein in the country, right? Wha…

Whatever is likely to be a departmental study…


What could happen?

So, yeah, I think it’s interesting , I mean I haven’t given enough thought to what were the quarters of the natural sciences, where, where, where it matters. And I think it’s something that I’ve been or miss about  having given it a thought too. And I think that’s true. It’s actually interesting, it’s quite different  from…uh…you know, if you hear about Colford diversity, gender diversity in higher education, it matters to feminists that there are more women in physics and stem fields. Uh, the Colford…  the conservatives don’t really seem to care that much, right? If there’s balance in those areas, right? It’s…they are really concerned about more narrow slice of the higher education. Because they’re not worried about engineering being taught, you know, from a liberal point of view, right? Or so, so, uh, they’re more concerned just about…these, these more poli…what would Maurny and Livsey call the political sciences when he wrote his classic on higher education.

I just want to, I just want to address, I haven’t looked at the data in a while, but there have been large scale surveys that are done by the universities ,that include faculty. And unfortunately they don’t ask “republican or democrat?”, but they do ask “liberal or conservative?”. And the humanities are likely to be the most extreme social sciences, and so there, at least it’s not slightly more… slightly... uh, uh, skewed . And then within the sciences there’s still a majority, for most of the sciences are democratic. The…you know, there are, there are some subfields that have always had more gender diversity, my wife, say, a geneticist. And she mostly trained with very prominent women geneticists. There ‘s always been… You know that within biology, genetics has always  been a field where  that women have been important in for half a century.


I just wanted to ask what role you think institutional diversity could play in the intellectual diversity within schools. So, in the example of economics, I think, much of what pulled economics rightward, you might say, was the University of Chicago and the very unique school of economics that was pursued there, which resulted in, you know,  in dozens of Nobel prizes and that kind of thing and now, you know, folks who got their PhDs at Chicago and are now throughout the field and are influencing economic clu…(b), uh,  to the stay. And so I was wandering what… to what extent something like that, you know George Mayson is probably the closest sort of example of something that’s kind of pursuing its own little brand, and is doing well as a result, but this is not quite the same as Chicago economics. So, I was wondering if you have any thoughts on this.

Well, you know, Chicago, which has been extraordinarily special in economics…actually, a couple of Deans embarked on the strategy of trying to reduce on the identification Chicago with a regularly institution. So they actually have been working very hard to change year admission. And by reducing and by reducing the hiring on the right. So even the unquiets where they’ve been a lot…there’s a often a push back against…  against stay in that way.

I think institution diversity might help as far as trying to have, you know, great university in conversations and scholarship. If it’s, if that means more of a viewpoint minority could be hired and enter into that field. I don’t think it helps with the classroom.  I don’t think it helps with the educational experience of students at…uh…you know, but it could help in, in some of this.

We leave her to notice.

Yeah, coming back to the hard sciences for a second. I guess, I would think that there may be a couple of things that they would tell us, you know,  and therefore they might be interesting then to look at. You know, one is that there may be better standards of good work, more greed-opponently standards of what’s good there. And so that might also help us sort out a little bit some of these hypothesis … hypotheses from that perspective. And I think also it might help us to sort them out from the perspective of self-selection greed etc. Because if it turns out, that the hard sciences  do have, you know, less of a difference, where, you know, don’t have the difference on the, in the political spectrum. I think they do and I think there’s been said a little bit. But it does seem to me that that if they have less of one or none, that would be suggestive also on the question of interest as well as, uh, you know, in that direction, in other words as well.

In keeping with that question is there any sign of politization in the grant making process? So , to the extent that there are government grants. Is there any work that shows that those are politicized at all?

That I’m not aware of.

So as an incoming freshmen, collage next year, uh, just curious  on, uh, I’m curious  if there’s any statistics on kind of the student bodies in higher education or if there’s any political preference like in admissions, if there’s any selection in that. I know and I was never asked: “what is you political preference?”. I’m just wondering is there a kind of statistics or data showing that admissions leads… leans one way or another, just kind of in academia. I don’t know if there’s any statistics on that but… or… kind of student body as a whole  in specific universities.

I, I don’t think there’s any evidence about …or…not…not that I’m aware of it.

On graduate programs.

On graduate programs there’s a little bit uh, and, uh, yeah…It’s not , yeah… there is one important study on graduate programs, which suggests that there is not much bias in graduate school admissions. Uh, you know, there’s one study there’s been and it is sort of outliering some ways from a lot of a research that, uh, uh that we’ve highlighted here today. It’s done by Phil Brows, he’s a sociologist. What he did is he sent, uh, uh… He actually did an experiment in which he sent fake e-mails to various graduate schools and, uh… You know, they were identical, except one was a McCain volunteer, identifying themselves as, as having worked on the McCain campaign, the other, on the Obama campaign. And he looked at, uh, you know, how quickly graduate school directors responded to those e-mails and he quoted the content of those e-mails, and found that  there wasn’t much difference. They responded a little bit slower to McCain folks, but it wasn’t statistically significant. And Grows thinks that this is a sign there isn’t any bias in higher education. I think it’s in his reading of this study, I mean , I guess I’m not so surprised by the finding, you know, professors are custom replying to e-mails, right, to students from across the political spectrum. It’s, uh, there’s not really a decision of any consequence that’s being made, right?  they’re not admitting this person into the program.

If they even render resume, right?

Yeah, so I just, I don’t, I mean, I think, I applaud them for doing this study, uh, but I think, uh, I think it makes sense to me that’s it kind of an outlier, that it is a sort of one non-finding, right? In this larger body of work. And I guess I am not so surprised.

I, I, I, I, uh... At Northwestern we used to for a long time… had a republican who was on the Admissions Committee. And since he retired and was no longer on Commission’s duty, some of us have been noticing that the student bias have given all of it a little bit more left way. And so we’re a little bit concerned that it might be true, but we have no evidence, it’s simply, you know, impressionistic. I think when you look at kind of people who are, who are administrators, particularly in admissions, they tend to bind into a traditional social justice kind of model. So, I’d be very surprised if there wasn’t some discrimination, but I am not aware of any studies that have shown that. I, I’ve often wanted to do a study in which I just took the results and reversed the signs of the predictors and wrote , wrote, wrote up with one result, wrote it up with the other result, and see, and see what…who would accept it and who wouldn’t.

Professor David Freeben.

Three points. First, as an ex-physicist I would point out that…

That’s everybody, right?

Controversy over whether it’s possible to make a hydrogenous bomb. There was a very sizable political issue of a lot if it is the same. You couldn’t, possibly because they wanted to believe that you couldn’t. Second, if you want to look at the mechanics of the discrimination, a very interesting time to research should be the point at which climate change became a political issue.

If you…I haven’t done this, but if you think about what was it like in departments that had climatologists before and after. Because at this point  it is very, very clear. I mean you look on the Facebook discussions . A group 1 climate . Everybody assumes that if you’re on one side of it, you’re conservative, and probably  religious, and maybe recreationist, and on the other side of it… and so forth. But my third point, which is really a research suggestion, would be to see whether, if you, if you look at who was being hired at the equits time, describing our do whether there’s any correlation with which party most recently won the White House. If you look at this form a standpoint of an opportunistic  acquiring, which says: “Who do we want to hire in order to get grants for the future?”. It would make some sense as it all looks like the right is rising, maybe we should hire the right wing backwardly if it looks like the left wing is rising.

You have it exactly backwards. I mean I had discussion with people when the said: “Oh, I should help the republicans among people on the right. I should help if Bush doesn’t win, because people are gonna be so pissed. They are not wanna gonna hire conservatives this year.”. So your assumption is if they are rational. My assumption, they maybe would want a gory favor but my assumption is that the things are more salient, when they, when they, when the people are hungry.

We don’t have to go on assumptions, we’ve got some zero as dated.

Yeah, the only, the only thing I wonder  is how much grants , thinking about getting grants drives law school hiring. It seems like maybe the sciences would be more relevant. I am not sure how many law professors actually seek any kind of NSF or any kind of funding along those lines. But it would be an interesting thing to see if there are any patterns with administrations and hiring. It seems like it’s been pretty flat over the last forty years, which would seem like maybe there’s a minor relationship, but I haven’t, haven’t looked at that data. So, It could be.

So, with that we’re out of time and I’d like to thank our panel.

11:00 a.m. - 12:20 p.m.
Student Perspectives on Intellectual Diversity in Academia

Stanford Intellectual Diversity Conference

Topics: Civil Rights • Culture • Education Policy • First Amendment • Philosophy • Politics • Free Speech & Election Law
Stanford Law School
559 Nathan Abbott Way
Stanford, CA 94305


Event Video

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The proper education of America’s youth is arguably the most important social responsibility the university has. But does a lack of intellectual diversity in school create pedagogical issues? Our panel of current and former law students weighs in.

This panel was presented at the Stanford Intellectual Diversity Conference on Friday, April 8, 2016, at Stanford Law School.

Student Perspectives on Intellectual Diversity in Academia

  • Dr. R. Sohan Dasgupta, University of California, Berkeley
  • Mr. Roland Nadler, Fellow, Center for Law and Biosciences, Stanford Law School
  • Mr. Ilan Wurman, Associate, Winston & Strawn LLP
  • Moderator: Mr. Jud Campbell, Executive Director and Research Fellow, Constitutional Law Center, Stanford Law School
  • Introduction: Mr. Jonathan Mondel, Co-President, Stanford Student Chapter


Event Transcript

Jonathan Mondel:  Hi everyone. I think we are ready to get started with our second panel today. This is a student perspective panel and I am going to turn it over to our qualified moderator, Jud Campbell, who is the executive director of the Constitutional Law Center here at Stanford Law school. 

Jud Campbell:  Ok. Thanks John. So I'll briefly introduce the panelists. We are going to be invaded by one hour, so about 12:10 or 12:15, who have a class in here for lunch, so --- so the first off will be Ilan Wurman, Ilan is an Associate at Winston and Strawn in DC. These are 2013 graduates of Stanford Law School. He clerked for Jerry Smith on the fifth circuit. And my next bullet point is to write a lot of law review articles. This is kind of an understatement. Ilan has often sent me an article before I had a chance to read the last one he sent me. [Laughing]. And he has one coming out in the Stanford Law Review which I am delighted about. Roland Nadler is the --- is a Fellow at the Stanford Center for Law and the Biosciences, locally known as one of hangs people around here. He is the 2015 graduate of Stanford Law School. He is going to clerk for Rob Cornby in Portland Main next year and his research focuses on Law and Neuroscience and also on Synthesis policy. And last up will be Sohan Dasgupta. He is the 3L at Berkeley Law School. He has a Ph.D. in International Law from Cambridge, a Master degree from Oxford and B.A. from Columbia He is going to be clerking for David Favorbron, the District Court for the Southern District of West Virginia and for Corney Kellingham on the 9th circuit. And he is the author of a book on International dispute resolution. And so, without further ado, I'll turn it over to Ilan. 

Ilan Wurman:   Thanks Jud. And so when we were discussing among the panelists what we will be talking about and we saw Sohan's credential, we all agreed that he would be going last so we don't have to follow his act. But I was the President of the Federalist Society here, I guess in 2012 when I was the student and this is my first time speaking at the Federalist Society event so it is a great honor and privilege that to be invited to speak here. But at the same time, I am not sure that I am worthy of the honor of giving remarks on the topic such as this, Intellectual Diversity and Political correctness. Because I think the question raised in this conference and on this panel goes to something very profound and important. They go to the very foundation of Western civilization, to the root of what it means to be a Western man or woman. Now, I did something there. I elevated to the certain extent Western civilization. Now,  abnormal call to your environment, I would perhaps have been kicked off the stage already. But, I think Western civilization, it's history and it's future. It's intimately connected to the question of intellectual diversity and political correctness. Because ultimately, as others, wiser than I, have suggested before, there has been no civilization in all human history that has been more open to self-criticism and more open to that diversity of ideas than has been Western civilization. Now, I do not wish to be misunderstood on this point. This is not to say that Western civilization is better in all respects, or even in most respects, on the contrary, Western political philosophy requires a question of the existence regime. It demands the search for truth. It seeks to discover better regime and ultimately, I think the best practical regime. And that requires seeking the flaws in the existing. We might recall, from undergrad or if you took a political seminar from Michael McConnel as I did here at Stanford that Socrates  the founder of Western political philosophy undermined the gods of his city and was put to death by it. Western political philosophy, in other words, does not require acquiescence in or [Inaudible][00:04:50] to the gods of our time on the contrary. It demands a thorough examination of the existing regime and the idea on which it rests. But that is all to say, that Western civilization is inequitably better. In at least one respect, then those cultures and civilizations that defer from it in that regard. And that is in its openness to self-criticism and the diversity of ideas. Can you imagine having this conference on this topic in modern day authority in China? Can you imagine having this conference in many, the many Middle Eastern countries that routinely deny their citizen's based secured and rights today, the right to free speech? Can you imagine having this conference in Canada? That might be a little of exaggeration but Canada does have, a so-called human right commission that halls people before it, to answer for speech they have made, including political speech. So we should all therefor take a moment to reflect on this proposition, which I firmly believe to be true, that all philosophical discussions, all the political and legal debates that we used to having, as lawyers and law students, intellectual diversity itself can only exist in a regime that it is profoundly respectful of this enterprise if we incorporate. And we all therefor should have a profound respect for that regime which allows us to engage it, and so my indication of Western civilizaiton at the beginning of my remark. So why do I mention it here? To a law school audience? Because it is here, at the law school and the universities and campuses across the country and now also, among the wider body politics that this Western culture, this culture that prices intellectual diversity, that prices philosophical according to the good and bad of other cultures and into the good and bad of its own culture. This culture is come to be replaced by altogether different kinds of cultures, the culture of multicultural  This, I think, has been something of a raw deal. Multiculturalism is kind of variant on Western civilization openness to other cultures, but it works that openness from the inquiry into the idea of a culture, which stamped from a combination of things, like the innate characteristics of its people, their environment, their historical experiences, their interaction of other cultures, random variation, human will and ingenuity, into an inquiry, into the innate characteristic only. Multiculturalism defines culture. It defines diversity, along with the characteristics one cannot choose, being black, being gay, being Jewish, and as soon the cultural perspectives that somehow share, as the a result predominantly of these innate characteristics. But this multiculturalism seriously degrades the enterprise of free inquiry, I think for at least three reasons. First, if culture is a product of these innate characteristics, how can one be better than another? What does it mean to search for the good and bad in black culture, or the good and bad in Jewish culture, or in gay culture and so on? If there is nothing we can do with that knowledge. If there is nothing we can change. Secondly and this obviously follows from the first point, multiculturalism no longer values choice or rational thought. It devalues what makes human human, the capacity to think about the future and the consequences of their actions and thus their ability to make choices. Third, multiculturalism is seemly wrong as a descriptive manner. Culture is not the son of its people's innate characteristics. And its people's innate characteristics surely or not the highest expression of a culture, rather a culture is, descriptively, a product of much more, of all the things I previously described, environment, historical experience, interaction with other cultures, random variation and most importantly, a human will and ingenuity, it's a combination of these traces and these experiences that form the highest expression of  culture, that if it's idea and especially if it's important idea. Those are about the good life and about its political regime. So too often I think, I see interest groups of even student associations, like here on campus, form around these innate characteristics. There maybe many legitimate reasons for the associations, particularly social reasons. But the extent, their perspective or values solely because of the innate characteristics of those who hold them. This is a hollow diversity. Stanford and please report for my time here, I think was quite a Western Law school in the sense that I have described. For as bad as some conservatives might think they sometimes have it here, we have it pretty good here. This school to its credit and more importantly the benefit of its students, still take seriously, this notion, that higher education is ultimately the search for answers to the most important questions, to those about how we ought to live our lives and to those about how we ought to order our political regime and to find these answers, we have to ask the right questions, questions that transcend far beyond its person's color, ethnicity or sexual orientation. These are the questions over which people and cultures have profoundly disagreed across time and place. But these disagreements, this intellectual diversity, if I may borrow the words of a political philosopher the last century, the secret to the vitality of Western civilization and its stewards of the legal regime that continues to support and repel that civilization. It is particularly incompetent upon us here to recognize that that is the kind of diversity we are fighting for, it might even make life worth living. So I conclude on this note, I'm often asked: "How can I be both gay and conservative?" and I'd like to say that being gay doesn't define me, at least not that much. Of course, it defines in the same way that being born male defines me or being tall or short might have defined me or being Jewish might define it that because I didn't choose to be gay. In the same way, I didn't choose to be born Jewish. But being conservative, I should say, for those who know me, being classically liberal and occasionally [Inaudible][00:12:03] here and there, those are choices that I made that are rational, free thinking human beings. Those choices are act of intellect and it is those acts, it is those  choices, which even if wrong, should be celebrated, as belonging to that great diversity, which is the secret to the vitality of our civilization. 


Jud:  Alright, Roland, thanks. 

Roland Nadler:  So I'm afraid lacking the rhetorical flare that Illan has brought to the table. I am going to endeavor to keep my remarks on the short side and that's in part because of the role that I have styled myself on this panelling, in discussion with ---

Illan:  The gap fly?

Roland Nadler:  That's what the gap fly as the  [Inaudible][00:12:55]. I am here as an avowed campus lofted trees to be poked and brought and asked questions without me accusing you of --- of oppressing me. And to that end, I very much want to thank the organizers, Jonathan and Michael for asking to be on this panel. This is not an act of empty tokenism but rather an admirable putting into action of the principles that animate the conference and I'm quite appreciative of that. Mhm --- when I was asked, I thought, well, what really are my qualifications, of course sitting on this panel, besides yelling on Facebook alot about campus [Inaudible][00:13:35] and political culture issue. And I thought about it a bit. You know, for instance, when I was trying to decide where I wanted to look for clerkship, I did think, "Oh gosh, I don't want to be clerking with the judge which whom I am going to agree all the time. I like to clerk for centrist judge who will change my mind, hopefully many times, at least once and maybe I will attempt to change the judge's mind at least once." I'm also on the record in favor of intellectual diversity in my other discipline, the discipline that I came to law firm, which is neuron ethicists and sort of on that note, I wanted to [Inaudible][00:14:20] a little bit from a piece that I published with the co-author talking to our sort of disciplinary cohort, in which we said: "Our field must not remain a political." We do not mean that it mush take sides in broader culture world, rather we urge our neuro ethicists to recognize that the field has its own internal politics that is a set of competing visions about what is healthy for the field? Whose interest to favor? Which ideas are treated as asymmetric? How research agendas are prioritized? And why the field exists? It is crucial that neuron ethicists engage in discussion and yes disagreement about the competing visions, failing to do so will not preserve a stage of comfort on neutrality, rather it will leave neuron vulnerable to cover colonization, by which ideology happens to be most neutral, most effective or [Inaudible][00:15:17] most profitable. So, as you may have inferred from [Inaudible][00:15:22] presenting myself as a panelist, there are many kinds of Republicans, I am not the one kind of Republicanism  I very much believe in. It's Civic Republican. And that's the theme that I think I want to highlight throughout my remarks and my answers, which is that I am freely very invested in a kind of Civic Republicanism of the viable [Inaudible][00:15:43] variety, I think that it is important and good and healthy for members of a polity to hash out the political disagreement in open for an attempt, not only to convince each other but really to actually convince third parties who maybe watching. And a lot of what you will see in certain way I think about free speech is --- is that there is a deep challenge when it comes to striking a balance between the arena of passionate more of emotions which are a key part of free speech and mitigating the chilling effects that might be, you know, caused by overheated discourse. And this is an issue which I think has been quite lined in many past year discussions over campus activism and in particular, so there is a --- there is a blogger that i follow a lot who covers these issues in a quote from him that I think is really key here is that; "Assertive aggressive hyperbolic speech is not in itself censorship, rather you can say, speech act and it's wrong to claim that it is censorship." Maybe another way of approach this is to say that, we are very invested of course in a role of principle in these campus debates. And one of my focuses is, again, both in my remarks and in my Q&As is going to be that, we already often let our principles yield too competing concerns in the extreme. I am going to be emphasizing this, not in the bit to establish some kinds of false equivalences between extreme cases and more moderate ones, but to insistently highlight that what we are having is always, always the debate over where to draw the line of how to reconcile and optimally balances of [Inaudible][00:17:34] competing principles. Sort of to illustrate this, here is a quote that you might expect to hear from the mouth of the dangerous cap -- campus activist, which is the at the time like this, scorching irony, not convincing argument is needed. Oh I have the ability, I can reach the nation and I can reach the nation's ear,  I will [Inaudible][00:17:57] pour out the fiery stream of biting ridicule, blasting reproach, withering sarcasm and stirring rebuke. For it s not light that is needed but fire, it's not the gentle shower but  thunder, we need the storm, the war and the earthquake. Now, this quote actually has its origin in one of the more extreme cases, this is Frederick Douglas invaded against slavery and in favor of abolition. And my goal, again, is not to make any suggestion that any of these issues that are currently under debate around campus activism are on any level more equivalent to chattels slavery, rather the point is to emphasize that there are times when it is true that we need the storm, the war and the earthquake that the ideal of reasoned debate that it is dispassion and calm and aimed at persuading one [Inaudible][00:18:56] rather than making a show of the important of moral emotions to observing third parties and attempt to persuade them to your cause. Those are speech act. Those are important part of free speech and to the extent that these tactics have been embraced by the campus [Inaudible][00:19:13], it's been, I think, for those of us participating in that tradition, frustrating to see a characterization of our participations in those speech acts as [Inaudible][00:19:25] too, rather than an exercise of the principles that we all care about. Mhm -- I keep on using the word "we" here, I don't mean to imply any level, any amount of consensus among campus [Inaudible][00:19:39] or activists. I think it is a highly internally fractious movement in a way that you, well, I guess today, [Inaudible][00:19:50] highly internally fractious but it's certainly no consensus that I'm attempting to speak from preserved more of my experiences. So, with that in mind and with an eye to the conference program focus on how -- the interaction between issues of political correctness and free speech on campus and their downstream effect on the heart of this conference, which is into intellectual diversity in academia. But I am going to use the balance of my time to walk through, just a couple of the hot button issues that have come up, especially in the past year around campus speech and activism. And, my goal here is of course, not in this context to convince that campus [Inaudible][00:20:36] are on the correct side of this issue, but rather that, if we are wrong, we are wrong for non-crazy reasons. What we are doing here is operating from a side of concerns and principles that are actually quite accessible to anybody who gets it, a clear look and where the disagreement arises, this much more in, like a how to reconcile the competing principles. So I am going to walk through four and then I am going to use the rest of my time. So, those four triggered warnings: micro aggression, , safe spaces and commencement speakers [Inaudible][00:21:15]. Mhm -- so, of the four issues that I mentioned, the [Inaudible][00:21:21] for triggered warning is the one that as the potential, as a hopeful one day law professor, I -- I understand the rank core over the least. I see it as sort of partnering parcel of what my job would be as an educator, to say: "Hi, potential student, I like to reach  [Inaudible][00:21:38] to you and let you know that I am here to support you and work with you. And you know, should any of the material that we touched on in the course be personally upsetting or bringing up aspects of your experience that make it difficult for you to learn, I am here to facilitate your learning as an educator." It seems to me that this is the curing of information asymmetries and of course, like yes, there is a risk that's this can induce self-selection out of difficult materials. This is the risk that already exists to the extent that syllabi are circulated in advance for any class and it strikes me that it's not a huge extension of that risk. And really only if -- if triggered warnings are overdone and I think that the sort of  [Inaudible][00:22:32] that they have been discussed in the media, where instead of a statement of: "Here's the content of the course and here is my commitment to support you." They are cast as you know, this course contains dangerous and wrong thinking material, that will be an example of overdoing it. It is not I think what most people that I have spoken with who would incorporate this into their syllabi are actually interested in doing. Mhm -- So when it comes to micro-aggression, this is one of the few areas where I actually feel enough confident to bring my mhm --- my sort of launch neuroscience angle into -- into the debate and -- and -- and sort of highlights the extend to which we can't unring the bell of knowing that you know, small sub-actionable harms of social rejections have a cumulative effect that when you have a brain pickle and  [Inaudible][00:23:32] all over a long period of time. You have conforms. So I -- what I want to encourage is thinking when people talk about micro-aggressions and it's sort of class action legislation kind of metaphor, right? That if everybody is harmed for a penny, a harm still exists, not every open to having discussion about what exactly should be done to regress the harm. But I think that, again, we can't unring the bell of -- of waking up to realizing to actually, there are aggregated harms that exist like this. Mhm --- and so because I am short in time, I just come to safe spaces and leave it there. So safe spaces are a great example of actually an ideal that we all can get behind, existing intention with another ideal, namely freedom of association. This is a good thing, right? And sometimes, it can unbuttons free speech. This is some -- this is intention that we are familiar with. It's legitimate to wish for haling from the upsetting  [Inaudible][00:24:27] and tempos of political disputes, especially when it's, I think many campuses left to dispute, you feel that what's up for debate is your basic right to inclusion and equitable state and status in your community. And we all create, you know, this little haven risk small in our daily lives. Anyway, of course, again, they can be overdone, one of the things I emphasize alot is in any situation and movement politics, assess is come with it and I am not here to you know, sit in defense of every single assess that exists. But I would similarly point out that when it comes to movement politics, a set of ground rules that are agreed upon by all participants in -- in particular space for organizing has always been crucial to making political progress if you -- it is possible to create tents that are so big that they collapse  [Inaudible][00:25:20] themselves and that it never has movement politics, had has made it progress. So, those are just several examples of how and about campus  [Inaudible][00:25:29] might think about some of these issues that are swirling this conference today. Mhm -- and I look forward being held to account for the internal consistencies of the positions in Q&A. Like I said, I promise I won't bite. I'm here to explain. 


Jud Campbell:  Alright, thanks Roland. Sohan? 

Sohan Dasgupta:  Thank you. Mhm I promise to genuinely be inline with Ilan and to  [Inaudible][00:25:59] Roland. [Laughing]. 

Roland:  I don't think I can experience oppression from them. 

Ilan:  Just feeling the vibe.


Sohan:   It's such an honor and a blessing to be here with you all today. Thank you to Stanford Law School, the Federalist Society National, Michael, Jonathan and micro panelist Jud, Ilan and Roland. The other speakers have been wonderful about empirical data and very  [Inaudible][00:26:19] scholarships. So I focus on more on the -- plus I am not experienced so dimensions. For those of goal orientations to what I said, Berkeley Law and -- but it is not limited to that. And I hope some of these insights are ruminating while others are entertaining and others still are booked. I am Sohan Dasguapta, currently President of the Berkeley Federalist Society and my remarks principally concern the cause of intellectual  [Inaudible][00:26:48] that are born substantially by the  [Inaudible][00:26:53] and that's because the great great intellectual part in Law School among students today is tied to viewpoint based shifting, even in cities of discrimination and a -- some identity politics. There are all tied together. Ladies and gentlemen, the great tumor of our age is that we often tend to care more about who is doing the speaking, rather what is being said around Law School today. This is an addition to tuning or denying the right of meaningful speech to disagreeable speakers on campus. And even what is alarming today is that today, the schools and free speech are often subordinated to mhm -- subordinated but ordinated some quarterly greater than months of making people feel comfortable. Now, whenever I hear that word, "comfortable', my first instinct is paraphrase the very elegant  [Inaudible][00:27:48] who said the Constitution, I think you talked about a bit of rights in this respect, isn't meant to make us comfortable, it's meant to make us free. But it is not comfort that this could produce after all, blind us produces a slanted vision and everybody knows that slanted visions are uncomfortable in a long run. So what it sadly generates is an exclusive monopoly on speaking and the marketplace of ideas and it's  [Inaudible][00:28:12] for the legal voucher and the rule of law. But philosophical isolation is not good for the individual but it's presently the price of doing business. But it's strikingly vanishing for the Law School own diet to have a philosophical imbalance. Even more delimitating for the Law School and the individual, though there is a settled discrimination, now impost on unconventional  [Inaudible][00:28:36] are conservative moderates, other decanters, sort of like problematic in the  [Inaudible][00:28:42] was it crying out in the wilderness? Leaves second generation barrier to entry or flourishing today, again, on conventional [Inaudible][00:28:50], it's used to against liberal in the 20s and 30s and now it's against conservatives and moderates. In Law School, a different from 1980s, more beleaguer version,  now it's secular, fine art, more lethal, less discourse latent, somebody's safe space is denial of somebody else' right to speak, or even to belong on campus, that by a 1000 bucks. Then there are political which  [Inaudible][00:29:14] followed, the pre-text for getting unconventional thinker  [Inaudible][00:29:21] will be something entirely different at times, should you write your admission essay or have your academic scholarships be about the importance of your Catholic or Protestant faith, certain faiths are often targeted, not others. Or the freedom of religion in general are wanting to defend white collar criminals, your other credentials best be significantly high to compensate for those partners's deficiencies mhm -- or your best already been a Supreme Court Justice or a court who appeals judge, maybe even cured cancer, nobel [Inaudible][00:29:51] something like that. You need to balance it. Mhm -- And conservative academics find it disappointingly hard to make it onto law school faculties so there is an asymmetry there. I think it's greatly to the credit of judge [Inaudible][00:30:02] champing over journalism and then [Inaudible][00:30:07] of convictions that three originalists have made it onto the Harvard faculty but that's rare. Beyond one or two openly conservative faculty members, you won't find too many. Mhm -- and there are many who try to earn a position there. There is a famous story about UCLA law faculty when mhm -- one -- one academic who later on became the Dean of Chapman was interviewing there and elderly faculty member leaned over and said: "We already got [Inaudible][00:30:38], why do we need him?" Even though [Inaudible][00:30:43] and mhm --- [Inaudible][00:30:44] and this gentleman were not exactly of the same mhm -- viewpoint on every issue. Mhm -- there's [Inaudible][00:30:49] Glaw and you know -- there are --- that applies to students and faculty alike  Several law schools don't consider working for the DA, US attorney office, prosecutions were to be [Inaudible][00:31:06], you don't get the credit arts for that. You are not eligible for it but if you happen to work for the public defender, you do get those hours. You do get that credit which is a --- which is a pity. Then, there is the [Inaudible][00:31:22] with some politics, recorded thesis underline inclusiveness and compassion. I love those words, which are encouraging and promising terms, heroic by law school, but too often, we disappointingly find that this inclusiveness or this compassion requires an ideological or philosophical limit test to absorb before the rewards are just plain equity or [Inaudible][00:31:44] before those bestowed. Moreover, [Inaudible][00:31:47] of safe spaces means that few with anything sort of [Inaudible][00:31:50] and enthusiastic support of this status quo, we have a meaningful right to be heard so that's where we are. So much so that even President Obama in respect to what the department of justice and education may have done in this field with their rule making and their dear colleague letters of which [Inaudible][00:32:10] of felt compelled to criticize its campus indulgence so insulating students from rigorous debate because we all lose when we begin to censor ideas and thus contract the spectrum which of ideas which are acceptable, even to be heard in the public sphere. Consequently, these factors would effectuate a powerful philosophical and balance on law --- law faculties and on legal education generally. When the law students go out into the world, they expect the same rules to be observed and they are not going to be. They will be in for a --- they will be in for unpleasant awakening. Today, we hear law schools outdoing each other with enthusiastic, mhm -- excitement over globalism, and rightly want to center alumni out to legal practice across industry from the UAE to Argentina. When the students go there and expect not -- expect not to be confronted with any thing they deem politically incorrect, which inherently a culturally latent term of art with meanings are very widely between what to expect in the bear area and what's ok in national [Inaudible][00:33:14] let alone New Delhi or [Inaudible][00:33:16], those students will find themselves utterly unprepared by their alma matters egos having [Inaudible][00:33:21] over the past three years, perhaps longer. The ego chamber problem as the professor Phillip referred to it earlier, it's going to hurt moderate and liberal students for the -- for those reasons. Now the centers, you got your principle mental and that psychiatric principle, it's a matter of principle, it's not that matter of pre- of [Inaudible][00:33:41] resolves or [Inaudible][00:33:43] expediences. Several themes are important here. Let's continue with the presupposition. Cherish and some quarters that philosophical divergence, it's correlated with [Inaudible][00:33:52] typical and communal identity, what do I mean by that? Race, ethnicity, sex orientations, religions, etc. And that campus of all places become fixated on these notions. It's not unduly reductive to maintain that there is a victim in all this and that victim is the individual who dans to think for herself, whose sincere reasoning in life experience refuse to used to a certain kind of expected group thing. It's a stereotype, no doubt. But somehow, [Inaudible][00:34:21] stereotypes, one that's used to include, rather exclude more and more people into the wither people fabric of this great nation. I think I read that in the concurrence product. Mhm-- what might be forgiven for failing to accept the justification of this kind of stereotyping because for one, when did we get to the point of saying that stereotyping for good purposes ok? Those stereotypes for [Inaudible][00:34:43] purpose will not be tolerated. Stereotyping over generalization alone is the fruit of a poison tree, if not the tree itself. And stereotyping done for [Inaudible][00:34:53]  good reason will fall into the hands of unofficial chief maker sometimes in the future, who doesn't have such [Inaudible][00:35:01] attention in mind. It's a loaded gun. Once a close law school friend, a conservative of conjoin and of color, was told by cilvil right activist, a fellow student that, "Of course we assume you would be a Liberal, you are Nigerian guy at Berkeley. It's up to you to clarify that you are not." The burden has shifted, ladies and gentlemen. This is jus the tip of the iceberg with respect to that intra group de-centers within the [Inaudible][00:35:36] marginalized communities and the inverted violence in exclusion inflected on them. There are stories of catcalls violences that are going on reportedly barely audible [Inaudible][00:35:39] and the life that occurred. I draw on these experiences that law school conservative, particularly those are, those who are persons of color, and or have LGBTQ sexual identities, there's almost an underline outrage, "how dare you think outside the box that has been cropped it for you? How can you do a 180 on our hard one sacrifices?" But it is to honor and cherish those early sacrifices, whose objective had been to liberate individuals from being [Inaudible][00:36:07] as members of groups and to emancipate them opportunities to be individuals with inherited dignity and hard [Inaudible][00:36:15] to think for ourselves. There's also intellectual and cultural hubris, that even to say that the dimension of the box, that is to say position on particular issues are allowed to be predetermined by certain powers that being today [Inaudible][00:36:30] guides. And for [Inaudible][00:36:34], there is no other cross one which a nail and independent thinker who goes against the expected ram to robust [Inaudible][00:36:38] some charges are in-manufacture, again, which intra groups disappointing the center can possibly defend themselves in time, but we hand up the offers upon which they are about to enter, like the source of [Inaudible][00:36:52] and mhm --- that's often the [Inaudible][00:36:56] in law school and beyond, but we have reluctant whatsoever in sustaining faith and confidence that principle awards standing for. And second, it's particular neglectful of geography history and statistics, if nothing else to assume that the origin with which person of color identified don't have conservative. India right now is dominated by the conservative BYB, who can alter national aligns in Kenya, governs countries [Inaudible][00:37:21] and so on. Since we inherit most of our philosophical beliefs from our families, it is not that conceivable that conservatives and mhm --- basically non-liberals who identity as person of color, particularly immigrants would have viewed close to those from their person of origin, from those that are origins. And [Inaudible][00:37:39] surprised that many conservatives of whatever background would think for themselves and happen to find themselves in law school environment on these shores where they continue to do so. The rule of law and intellectual simulation and education of all of us will be greatly improved. I think I am short on times so I got to the chase. Mhm -- that peace allows me to get a little bit personal and use the device of contrast to do so. One Berkeley raised scholar likes to say that:: "Many of us mhm -- for -- for people, it's easier for the sub-consious to imagine myself himself as if fire breathing lion, as if the person of a difference race or gender, he goes to dream sequence to get there." So that's the bottom line of this part experiment. Now contrast this with the lives of many of us, I grew up in large part in Asia. I like my cricket, the [Inaudible][00:38:23] I was taught by my grandmother, the hard science I never to do but mostly struggle with, the dog that my cousin and I had to go out the trees in the backyard. In my dream, I felt I deserved one [Inaudible][00:38:35] with kids all over the world and mhm --- in places that I never even visited, a boy in Holland, a girl in China, a girl in Egypt, the boy in Kenya, the girl in Switzerland  I like the elves. Mhm --- it never even crossed my mind what their races were, then or now. And I don't think that only hyperactive imagination was to -- -was responsible for this. It's because that quality that confirmed on this attributes that go very hears of our personhood. Those are the qualities that make us who we are. And the who will be always be more important than the what. The checklist feature of you know typical and communal attributes. Mhm it's not uncertain to say whatsoever that one is an outlier to believe all of this, and the polity doesn't operate from these premises or employing these assumptions, maybe so, maybe not, but that's not the point. The point is -- that this idea to which we must aspire and that idea frees individuals, including those in thee law school setting to think for themselves and emancipate from the boxes to which them have been relegated, otherwise they would be a -- again to indulgence a highly [Inaudible][00:39:37] assumptions going to the 21st century. To paraphrase national reviews, Peter [Inaudible][00:39:42], the study of laws of viewpoint diversity by reminding us that what justice, a component of law, though by no means that the exclusive ones, it's --- it's the [Inaudible][00:39:52] and invisibly difficult question and as a variety of plausible answers. When the study of justice is replaced by slanted conception of social justice and inverted comma, viewpoint diversity always suffers simply because those with different views of the place and significant of justice are marginalized the wars, we should be better than this, to [Inaudible][00:40:16]. Thank you for you attentions. 


Jud: Ok, we only have about 15 or 20 minutes for discussion and Q&As so I will ask for quick responses among the panelists to each other if there is any discussion and then we will open it up to the mic. 

Ilan:  So I have a short response and I will limit to my micro-aggressing against trolling. [Laughing]. First, I see my 45 seconds of my time to try to learn why this commencement speakers potentially justify or how liberals think about it. So --- mhm --- what did I say? What I have prepared on this is that, surely that you can think of person that you have been angry with your institution without consulting you for input, cut a large on arena check to and offer you to them as the captain audience on the day that's supposed to the day that's celebrating you and you voice your decent about it and get a branded an enemy of free speech, is the short version, I think the [Inaudible][00:41:13] has been a little misleading because often what actually happens here is not invitation, but decent and then the decent gets mhm --- grant immediately as an attempt to dis-invite. I think the --- ifs, you know, students were exercising this invitation, now I get a little more nervous, but this is not what I have seen in this debate. So I mean, I don't follow too closely to the [Inaudible][00:41:35] the adminstration to dis-invite speakers but they are doing so from a position where they don't have power to actually make good on that demand. So I am not entirely sure about that but I will ask my other, I will make another point which -- butt --- you mentioned irreducibly competing principles and I guess what you are saying is --- the two competing principles are the thunder and earthquake speech of liberals that want to shut, not hear certain things or protest against other speech or potentially shut down other speech. I am not entirely clear on what it is, but my question is: " Doesn't -- isn't the solution to the  -- or how to balance these principles already in the constitution of the United States in the first amendment which allows free speech, but has the kind of [Inaudible][00:42:24] John principle embodied it, which you can't defend someone with your speech right? You can't insight violent, you know. Once the 1930, someone couldn't have fighting words, I don't know if that is still a good law but that's a harm principle and I think we can all get onboard with that. and it seems that you know -- mhm -- you are advocating in terms of that triggered warnings or I don't know advocating but explaining triggered warnings, micro-agggressions, safe spaces that people don't want to be harmed. So the principle and abstract that actually seem toe be same, but are we diluting the content of what it means to be harmed, to the point that there is such-able bar that there is no bar at all.

Roland:   So I think, and this is -- this is what I sort of emphasizing with the un-ringing the bell metaphor with is what we are doing is developing a much more sophisticated ear for what it means to be harm, what it means to be harm collectively, what it means to be harm in small but then aggregate up and you know, we are shredding I think, to a great extent, mhm -- our long insistence on the notion that you know, that physical injury is -- is of some absolutely [Inaudible][00:43:39] category that it needs to be forever disaggregated from mere emotional light as those -- you know, these mere emotion lights don't ultimately register a physical system that is the brain, which is very much a product of -- 

Illan:  Switching back a little bit, again, I guess I like to find solid in the law and doesn't the law have response to this, like the intentional [Inaudible][00:44:04] distress, you know, When someone wants to discuss the history or reading a book on the KKK, was he intentionally try [Inaudible][00:44:15] distress on someone? I don't think so. I think the law has categories that have evolved over time because they work and I am wondering if modern campus liberals are just trying to expand those categories such that they become ultimately meaningless or the  --- 

Roland:  The meaningless [Inaudible][00:44:35] but there's -- there's no question that there is an effort to expand those categories in response to a whitely shared feeling that previously -- the previous line during exercise was premise on the assumption that no longer quite fit of our understanding of our power dynamics and society and individual experience of real harm, right ? We -- that there is this absolute a line redrawing exercise but that's not to say that the principle that animates the debate is not long respected. It very much is. 

Jud:  Alright, let's take some questions. 

Male:  Yeah, I have that --- actually two questions for Roland. The first is whether you realize that his argument about saying emotional harms corresponding physical harms is supported by a famous law review article by Bort who made that argument, but the more serious point, I was interested in issues of passionate speech which I observer mostly online controversies, rather than here. And I can see three different reasons for such speech, only one which I approve it. One of them is to convey listeners your feelings and the hope that that would change their views. One of them is to make yourself feel good and to raise your status with your in group by showing that and what strikes me in the online controversy is that most of the people engaging in this are in fact subverting their own side, that is to say they are making their sides look worst, other than -- that is their passion of insulting people, all sort of stuff with that story and that pretty clearly tells me that their real insane is not what they claim it is, their real insane is to feel good and to show it. Third reason and the only we count censorship is that you are using emotional means in order to make it costly to be on the other side. So if you --- lot of people, if you say x too much, they erase it. And people don't want to be considered racists, don't want people to never hurt the [Inaudible][00:46:39] don't know the context to think that they are racists and the reason you are doing this is to shut people up. And it seems to me that that third is really censorship even though it's not legal censorship [Inaudible][00:46:49] power but in terms of intensity, it is censorship and I guess part of the question would be how much of the passionate speech are you defending is in which of these categories? And I guess one more thing and I want to question the commencement speakers because I can understand the argument you don't want to give money to people you disagree with. On the other hand, if you don't want to hear people you disagree with, if you prefer people who are preaching the converted when you are one of the converted, that is the same to me as it falls to you, not in them and then the very simple test and that is, when there is a public lecture by somebody on the right or the left, which one the students on the right or left attend? You are attending the [Inaudible][00:47:37] that doesn't give anybody money. If you prefer to listen to people who would tell you how wonderful your ideas are, then you go to the ones who agree with you. If you prefer to listen to people from whom you might learn arguments against your view and the one you disagree and you can presumably collect casual data looking at that thing on your campus and figure what is really going on.

Roland:  So to sort of speak to the sort of grant four of the Internet that is an issue, let me sort of answer to the different reasons you run through, kind of you give my theory of Facebook political disputing right? Mhm -- It's kind of -- the reasons are kind of a hybrid of the one you talk about. I know that like all argumentation in the sense is the process of making costly to hold the opposing view. Now whether you are making it costly in terms of how a person is --- view in with regard their moral [Inaudible][00:48:36] versus how a person view in terms of their ability to debate right? Those are different ways of making it costly for somebody. At some level right, when you show that a person is wrong [Inaudible][00:48:56] with some elaborated rhetorical ruse, you are making it costly for them to hold the opposing view. You are doing it for a much better reason when it comes to convincing the other side but this is sort of Segway into mhm -- what I want to emphasize the kind of civi republican that I am talking about, which is that I don't often engage with people that I know are going to disagree with me with the aim of persuading them. The aim rather is to convince third parties viewing the dispute that mhm---both by [Inaudible][00:49:37] of better argument and by selected recruitment of justified moral emotions right? That mine is that side of defense worth putting  onto. 

Male:  You never consider the possibility of engagement the defend, in the debate on the parts that might change your view? That wasn't in your listed reason. 

Roland:  Oh no. The point is rather that primary concern in this kind of, you know, political forum is -- is first and foremost to say: "Look, people's politics are extremely [Inaudible][00:50:06] and probably the best way to generate more light than heat is to in engaging, show other people whose minds aren't yet made up, why the position that I am taking is --- is actually not only --

Male:  Is correct or is emotionally satisfying? Those are quite not the same thing. 

Roland:  Those two are --- well those two are actually hard to disentangling.  You ---

Male:  And you distinguish between getting somebody to not believe something and getting somebody to not say you believe something? Because those are very different goals. 

Roland:  Sometimes it's the form and sometimes it's --- that's the situation. 

Male:  [Inaudible][00:50:47], you should not be doing it. 

Roland:  I would say, on the prior point, there are some good authority for [Inaudible][00:50:53] and I think it was [Inaudible][00:50:55] conservative, a young conservative radio personnel that once said: "Don't argue with the liberals, unless one or two conditions are met, you actually have to because your grade depends on it in class for example or you got an audience. You might persuade other people. 

Jud:  Alright, Jim? 

Sohan:  So I must a --- sorry very quickly, I must make a slightly tangent of point of the honorary machine for commencement speakers are you know --- not withstanding the fact that students are mhm --- are clients as it was, rather than students of the universities. Not wanting to give money to those with whom they disagree, one of the proponent of that, you know if you are going to do that, think about public sector employee wanting to give money to the public center unions with whom they disagree, just to curious of point. 

Roland:  I think those are pretty differentiable cases but what I want say is what I think the students in the commencement speaker issue really would like is for these decisions to be made with their input, these are decisions that are reportedly for them, they should represent. them. 

Sohan:  Well, right now, Roland, we haven't gotten a single outside commencement speaker because of the union boycott, which outside speakers not to accept Berkeley speaking engagement. So right now, we haven't gotten a single person coming to our graduation from -- from you know, external environment to speak yeah.

Jud:  Alright, Jim?

Jim:  So I want to push back as quickly as I can. So triggered warning, I think, once you know, with my own opinion on this, I think you should avoid to do this harm but we shouldn't think there was something inherently wrong [Inaudible][00:52:34] and mhm -- you talked about psychology. It's little to I know but some of my colleagues on the [Inaudible][00:52:40] academy have written that in-therapy, do they try to avoid that you fear of or do you confront it and they say, absolute consensus and theory confront it. On micro aggression, micro aggressions are real. But one of the things that my colleagues in [Inaudible][00:52:54] can [Inaudible][00:52:55] what we do is racism. And a micro aggression training is highly unlikely to reduce racism. Putting someone in the room and saying you are doing a lot of bad stuff is a terrible way to reduce racism. So even if they are real, I am not sure if they are the way to go. And then, think about conservatives. How many conservatives are subject to micro-aggression alot, which I am sure you don't disagree with. And then safe spaces. Mhm---I think everyone should be able to retrieve to the room or whatever, not being hassled. But beyond that, safe spaces are spaces where you don't hear ideas that you disagree with, that bother you. What conservative can hope to be educated in environment American Universities in which they have that kind of safe space, none of them. So I think I ask you a bit much and I am someone, I am not sure who said it but: "Safe spaces are places where cultures go to die." And that's my opinion and I am not ... You may want to comment or not or you might just want to --- 

Ilan:  Can I hear the last question and then I answer ... ? 

Jud:  That will be fine.

Jim:  I guess I am here to [Inaudible][00:54:04] a little bit. 

Roland:  I volunteer myself with this. I am here to answer ... 

Jim:  Well, I think what I find most troubling about the student movement this last fall is the assumption that education should be you know, [Inaudible][00:54:21] because diversity, deep diversity which is involved classy views of the good, the good society is inherently offensive. So -- then you are debating things like ethics, abortions, right? with the good society. There is not way that conservation isn't offensive. And [Inaudible][00:54:45] education right? I think is the fundamental [Inaudible][00:54:49] right? When you go to some place like Liberty and you are not ... the whole point of education it seems to me is we are trying to shelter you from views that might undermine your faith and tradition, And so if we really value diversity right? It seems to me we really want a very offensive education, but I guess the other thing I would say is that I do think that movement --  I guess my other concern is that it's cultivating a culture, a culture that's hostile to the free expression of ideas and I think we see this in some of the climate surveys right? I would encourage you all to look at the climate survey that University of Colorado did, where the students are -- say: "Look, I am afraid. I don't speak up in class. I feel intimidated. Mhm -- that -- so free speech is not -- you know --- it requires a certain kind of culture and that culture is fragile because there is something very unnatural about creating an institution that designs to be offensive. Right? 

Roland:  So when it comes to like the hostility plan, one thing that I --- I want to try to underscore that's I feel there's been this huge [Inaudible][00:56:00] created of how terrible it is to be viewed as the person who said the wrong thing. One of the things that disgust in the [Inaudible][00:56:11] activists, you know activists and organizing circles is if you just do it right, it's so easy to meaningfully apologize right? To make amends if you actually sort of like take responsibility for the thing that hurt people right? This is something that has been mhm -- I think expensively discussed in these circles is like, the more we ramp up the extensive in which we are going to be sensitive to how speak can harm, the more we are going to get really clear on like, here's how you readdress like that harm as the person who accuse to [Inaudible][00:56:50]. So -- at the end of the day right like, even if I go around within like you know, campus like activists and organizing circles and I eventually say something that is you know, wrong thing right? A, that's an evitable and b, the consequences aren't all that terrible. I say, " Oh, my bad for violating the you know, shared convention of the space. Like, I will do better next time." Mhm -- So I want to sort of deflate the [Inaudible][00:57:20]. 

[Background question] [Inaudible][00:57:21]

Roland:  So here is I think is a very expensive question is how do we neutrally optimize among the principles of charity and the constant situation that politics unfold amidst a trust gap right? Because, I think, I thin where people are coming from with this culture of uncharitable is gosh, we have been through this a million times where somebody said something that we know is actually dog whistle for you know, for a policy that hurts us and then they [Inaudible][00:58:23] into the, oh no I didn't mean it that way, be more charitable so --- I think what you are witnessing is a sense of exhaustion with the demands of that, I am going to attempt to redraw where the intersect of these two principles fall. 

Jud:  Time for one more question. 

Male:  So instead of piling on, I want to say something in defense of, at least a safe space argument as I hear Roland correctly saying, you know, I don't --- I didn't hear him defending the idea of you know, broad [Inaudible][00:59:01] campus ought to be made safe, but rather it ought be to remissible for groups to form who are like-minded to have safe space.  Having to defend that proposition in the United States Supreme Court a couple of years ago unsuccessfully, I -- I am still with Roland and agains the Supreme Court decision in particular group that wanted safe space, it's the Christian legal society at a Hasting Law School in San Fransisco which among other things, one of the religious beliefs, they didn't believe in same-sex marriage. And the university, public university would not allow them to have a group of just themselves and insisted on a so-called on-comers policy which to say, ain't no safe space policy and I would just say, if we are going to have safe spaces and I think we should, I think freedom I agree with Roland, freedom of dissociation does sometimes allow self-selective group to retrieve and be just among themselves, but it's healthy for everybody. The real problem here is that some people think they they entitled to be protected against verbal assaults and nobody else. 

Roland:  So I am very much in agreement and glad you pointed out the the stoke and scales of --- of where we extend this freedom of association to -- to you know cover people's you know, desire to retrieve is absolutely something that has limits right? And I don't think it's actually as harmonizing as I think that as people might think [Inaudible][01:01:00] is for university wide hate them from all ideas that one might disagree with. Mhm -- 

Ilan:  Can I interject about one point? I just want go back to something, I know we are running out of time. I said [Inaudible][01:01:10] optimized. He's different need, He's different principle. And I just start to think about personal experience and do we really need to optimize two different principles or is one principle so much better than another? Because -- I know, draw from my personal experience, you know, coming out as gay and conservative has never been an issue in my life but coming out as conservative to gay has caused [Inaudible][01:01:35] of problems and I have been macro-aggressed against, I have been shouted at in public places by other gays and I am thinking to myself as I am thinking here, would I ever try to optimize, you know, my safe space and my ability not to hear that with their ability to make some sort of speech? No. There is no question. I would never sacrifice their right to speak as aggressively, as hatefully as they want, with my right to be comfortable. So I don't think there's anything to be optimized to. 

Jud:  Alright, thanks. 


1:30 p.m. - 3:00 p.m.
A Conversation on Intellectual Diversity

Stanford Intellectual Diversity Conference

Topics: Civil Rights • Culture • Education Policy • First Amendment • Philosophy • Politics • Free Speech & Election Law
Stanford Law School
559 Nathan Abbott Way
Stanford, CA 94305


Event Video

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Why make a big deal out of intellectual diversity in academia, anyway? What are its advantages? What are its disadvantages? Is it a goal worth pursuing at the expense of others? Dean Larry Kramer and Professor Michael McConnell debate these points and others.

This panel was presented at the Stanford Intellectual Diversity Conference on Friday, April 8, 2016, at Stanford Law School.

Keynote Conversation

  • Dean Larry Kramer, President, The William and Flora Hewlett Foundation; Lecturer in Law and Former Dean, Stanford Law School
  • Prof. Michael McConnell, Richard and Frances Mallery Professor and Director, Constitutional Law Center, Stanford Law School
  • Moderator: Prof. Bernadette Meyler, Carl and Shelia Spaeth Professor of Law, Stanford Law School
  • Introduction: Mr. Michael Rubin, Co-President, Stanford Student Chapter


Event Transcript

Mr. Rubin: So now we have our keynote conversation, sure to be a lively and animated conversation about the virtues and drawbacks of intellectual diversity in academia, so please join me in welcoming Dean Larry Kramer, Professor Michael McConnell and moderating Professor Bernie Meyler,

Professor Meyler: Great well I'm really honored to be moderating this panel and so what we've decided on as a format initially before we open up to questions from the floor is that I'll pose some questions that we've talked about a little bit and then I, Larry, and Michael will give their thoughts. 

So the first questions really is a pretty broad one which that the idea of intellectual diversity, obviously it's the source of this conference but it's been with us for some time now, at least since the academic bill of rights in 2004. And I just wanted to see so that we're all on the same page in this discussion whether both of you could give us a brief sense of what you think intellectual diversity means today and where we are with respect to intellectual diversity and the academy now. 

Dean Kramer: You go first. 

Professor McConnell: So I think intellectual diversity can be a very broad term that refers to a lot of different things. It might refer to methodological diversity, and particularly in law schools where the law, we do not have a one particular methodology, there are empiricists, there are historians, there are the law in economics people there are doctrinalists, there are a lot of different ways to, and that kind of methodological diversity might be what we're talking about. 

It could be a lot of things, but in this particular context what it usually means is something like ideological diversity and we don't like that term ideology because we all like to think we're scholars and that's not a bad ideology, so intellectual diversity is a euphemism for that. None the less, it seems to me quite important.

I didn't know it started in with the academic bill of rights, which I'm not even I'm sure I was aware that that happened in 2004. But it's been a concern for quite some time and I think as concerns about other types of diversity which are so much more prominent in the academy race, and gender, and sexuality, and other ethnicity, and so forth. I think that as they became more common the intellectual diversity was just sort of a natural question. 

So if we care a great deal about whether there are sufficient numbers of women or racial minorities in the classroom because they bring a particular perspective and thus contribute to the scholarly and pedagogical enterprise, and I'd like to note here that this is to talk about diversity, not because of any kind of a social justice benefit for the professors who might be getting these positions but for the scholarly and pedagogical value of their presence within the institution as that becomes more of a topic of conversation, it's natural to say well okay, if those things which effect opinion matter, well how about what you think. 

Maybe there's something a little more direct about making sure that there are conservatives and liberals, libertarians, feminists, different type, various strains of thought within the institution and the sad fact that is that very few law schools and very few universities around the country is there anything approaching that and so the question is why not. And can we do something about that, what are the causes of it and what, if anything should be done. 

Dean Kramer: I'll just add a couple thoughts because mostly I think I would agree with all of that. I'm not sure about the last part, we'll have to flesh that out, that's what we'll talk about later. But no, I'm not sure I disagree but in terms of the definition the only thing I'd add is the practical dimensions which are two fold. So one is any particular institution particularly a law school is relatively in size. So we start with the notion that we want diversity, generally for all the reasons that Michael talked about but there's a million different ways in which you can be diverse, all of which will add something into the community. 

So the question is, how do you negotiate through the kinds of diversity that you'll have in your particular institution and it is inevitably and always reactive in that sense. You're never starting from scratch unless you're starting a brand new so you've got an existing institution with whatever it represents and and you have to then choose. I think there's two driving things generally. So one is how does the society, what are the fraction lines at the society outside of the university has defined is important that will therefore be important. They'll be important because you're training people to go work in the world and because they're in the world.

So those are an inevitable set, they many of them have been relatively stable for awhile that's why are we so focused on race and gender and various things like that because those are really important categories outside to society and so they come into the school. Then you know and that's why ideology is in fact obviously important. Religion is important. The in some ways the harder one is the methodological one because the stakes inside the academy tend to be huge. If you ask me an area in which academics to can be really really unreasonable, it's about people who use methodologies that are different from their's and then how how do you figure out you know what do you do when you've got...

 So I'll just tell a quick story when I was at the University of Michigan, when I got there there was no one on the faculty who did law and economics. And there were many people on the faculty who just they had gone through the critiques about why it was wrong and a bad idea and they were just apposed why there was nobody at the University of Michigan who did law and economics they wouldn't hire anybody. And I was sure the hiring committee, and the position I took on that was this is clearly a significant and important movement, intellectual movement, within law and we do a disservice to our students if we don't have anyone here who really can teach it to them other than to tell them why it's a bad idea. 

So as an institution, you know you can make that, and that is an argument that gets made and you get lots of push-back. So so all of those are there but in a way it's it's a negotiation within your institution in terms of what people are willing to accept. And between the institution and the larger university and the society at large because you're never going to get there on on everything. 

Professor Meyler: Great, well you both opened up so many different areas of inquiry so I just want to I'm sort of start with I picking up on one point that Michael raised which was this notion that we're scholars and it's not about ideology. So one of the critiques that Stanley Fish among others has mounted against the idea of intellectual diversity is that the object of academic inquiry should be the pursuit of truth so ideology should be an irrelevant.

So he said at one point in a piece on intellectual diversity that "Intellectual diversity is not a standalone academic value no more than is free speech, either can be a help in the pursuit of truth but neither should be identified with it. If intellectual diversity is not an academic value adherence to it as an end in itself will not further an academic goal but a political goal. It will be part of an effort to alter the academy so that it becomes an extension of some partisan vision of the way the world should be. Such an effort will not be a perversion of intellectual diversity, intellectual diversity is already a perversion and its transformation into a political agenda is inevitable and assured." So what do you think of this critique, what are some responses to that?

Dean Kramer: I'll let you go first again. 

Professor McConnell: So Stanley Fish is always interesting. First of all, this is not a critique of intellectual diversity this is a critique of thinking about diversity at all. What scholars do is they peruse the truth it shouldn't matter whether you're black/white, male/female, conservative/liberal whatever that's just a distraction from the truth and maybe that's maybe that's right. I would think it would especially be right in those disciplines where pursuit of truth is a more accurate measure.

But what if maybe we're interested in beauty as one other possible thing we might be say studying the humanities and taste contributes to this. We might well be worried that say if we're just, if we're the French academy in the nineteenth century that we take too narrow a view and we end up telling some of the greatest innovative artists that they should find some other line of work because they don't conform to that, maybe a little bit of diversity with respective beauty matters. 

Well what do law schools do?  There is some truth in law schools, I like to think that. But part of what we're doing is we are preparing citizens who are going to be leading public discourse and public life. We are making, more so than any other discipline we are preparing the leaders for the country. And I think that that means we need to prepare them for negotiating in a pluralistic world in which people disagree. Just to say don't do anything but look for truth seems to me not a very good answer to this. What we need to do is turn out students who are acquainted with how America thinks, Americans think and that means in different ways there isn't just one thing and they need to be able to communicate with one another. I think they need to be able to communicate with one another in a civil and constructive way which involves actually understanding the other point of view not just labeling the other point of view and not just assuming bad motives on the part of anyone who might disagree.

I don't know any way to do that other than to model on our faculties that kind of discussion and for a student to be able to go from torts with Pam Karlan to contracts with Marcus Cole is a great way to learn how to do that. If we didn't have people like Pam and Marcus on the faculty we wouldn't be offering on as good an education in my opinion. 

Dean Kramer: So again I agree with all that too. 

Professor McConnell: Well I'll try to do better. 

Dean Kramer: Well you left out justice and the American way. I want to, and of course I used to, I still think the single most important actually all we do in law school is teach you how to see the other person's argument from the way they see it because you're never going to be any good at what you do if you can't do that. In some ways that's the core lesson of law school in particular and I think to a large extent of learning generally.

If you can unload this I wanted to pick up on one of Michael's last points because I think it makes the argument really clearly which is, so I teach, or used to teach, I taught like five or six different classes and I would sometimes get students who actually liked my classes enough that they wanted to take all of them or more than one of them and I would always tell them not to.

The reason is I have a particular way in which I think about law and the fact is and here we're not talk about ideology or any those things just how I analyze law is mine and all my classes are basically the same class because that's really what I'm teaching you. Their content, but that's true for everybody. The content is a little different and to the extent you want to learn that content in a class rather than reading a book that's fine but what you get from each of us is that.

So what I would always say to students don't take a whole bunch of classes with me, take a whole bunch classes with all the different professors that you have in whatever school you're in because they're all going to seem good to you hopefully and out of that jumble you'll figure out your own way to think about it and that's the only way you're going to do it. In some ways that's the point for having all the different kinds of diversity that we need is so on the teaching side so that we get there. 

The other thing just about the Stanley Fish point, just the idea that we're searching for truth just actually strikes me as irrelevant and beside the point, only because same reasons you know when people would have these vicious arguments about like moral relativism or not, other absolute moral values. It would be like well all I know is at the end of the day, are any of us, our ability to grasp with those absolute moral values are is inevitably filtered through our subjective selves that's just inevitably true.

So that's true for all these ideas so the reason to have people who are all searching from truths and are coming also to different conclusions is because we have no idea which one is right and we're not going to get any closer to it unless we're actually confronted by all of them. We're never going to know which one is right hopefully will have our own views but if anything if that's the goal then you're going to further much better by surrounding yourselves with people whose ideas are going to challenge yours and make you rethink them and push a little harder on it and never know for sure.

Professor McConnell: Let me comment about this business of not taking every one of Larry's classes because I've noted, I've thought about the same thing. I think it's part of human nature and certainly students do this, but it's not, but it's something we ought to think about and maybe even discourage which is always taking classes with the professor you are most likely to agree with.

At Chicago at one point David Strauss and I would do the basic common law course, David Strauss being a person I greatly admire but you know considerably to my left, me put it that way. We taught at different times and Chicago is a very laisse-faire and so students could sign up for whichever section they wanted. That meant the right of center students would overwhelmingly take my section, left of center students would overwhelmingly take David Strauss's section.

Well he and I had this fantasy, we never did this, but the fantasy was schedule our classes at the same time and then have all the students sign up and then walk into the opposite classroom. So that I would be teaching the students who self-selected for him and he would teach the students who self-selected for me. I really think that would be a good idea. 

But it relates to this to the general problem we're talking about in the conference here which is, that makes it look like a fifty-fifty proposition. It is very difficult for students who even desire that kind of an experience to have it when in the whole public law curriculum there's one person who's right of center, I mean what do you do? No wonder right of center students want to get at least a little bit of that sometime/ They want to have at least one experience of that in law school. We need more people are who provide a difference of opinion, in my opinion. 

Professor Meyler: So I think that both of you have been talking about is the value of intellectual diverse for students. So I'm Larry talked about and how we're training people to go into the world and Michael talked about negotiating a pluralistic world. I wonder if there are other advantages of intellectual diversity. So what about for other faculty, for legal scholarship, or for society at large. So what are your thoughts about the value of intellectual diversity in those arenas?

Dean Kramer: Because I can just be very quick. I don't think, I think it's the same values and the same benefits. So whether you're talking about scholarship, society in general, the university at large, other faculty, it's all the same students, it's all the same argument. If there's a difference, hopefully by the time we're faculty we are more capable of finding, searching out, understanding what our biases are and whether we surmount them in our own work, at least searching out the ideas that will challenge us not everybody does that. Students are kind of at our mercy since they have to take classes and they can only take classes we offer so that's a difference. 

But terms of benefits I think it's precisely the same. 

Professor McConnell: I think that in terms of this potential solutions or what we do actually is slightly different though, because for scholarship it matters less who is in the office next door and the rest of Stanford Law School than nationwide when I'm sending out a draft of an article. I might or might not send it to somebody at Stanford but I have a list of people to who I will send it. What's really important and doesn't maybe exist enough, and by the way they aren't even all in law schools, they're lawyers I send them out to, they're people in think tanks.

So, diversity for the students’ point of view. you need to think about each law school and each law school when its composition is for scholarly world, the whole nation, maybe when the whole world are few people in other countries I sometimes send things to. But here is what I would wish that we changed a little bit which is for the most part I don't get serious constructive comment from people who aren't at least vaguely in my...

Dean Kramer: Intellectual universe. 

Professor McConnell: But they don't have to agree with, in fact the best ones are always the people who don't fully agree with. But people who just think that we're on the opposite side of an issue are very unlikely to really engage, and that is something that's a product of scholarly culture. Larry and I both began at the University Chicago law school.

Dean Kramer: I was actually in the office between him and Strauss.

Professor Meyler: What a metaphor.

Professor McConnell: I think thinking of all the places I've been, I think they succeeded the most within those halls of creating on an alternative idea where you really have a responsibility to take seriously other people's work. But that's not the way the world is, if somehow we were able to inculcate the idea of responding constructively to people with whom we have very little in common that would that would be a good thing. But it's a totally different, it seems to me it's a different set of of projects to try to deal with the scholarly side than the teaching side. The teaching side I think what we need is law schools need to, they need to take intellectual diversity as seriously as they take any other kind of diversity. 

Dean Kramer: Yeah I would, these are small disagreements and around the edges, but I actually think even with modern technology proximity matters hugely. I mean when I think my own experience I started Chicago, I moved to Michigan, NYU, then Stanford, and my own thinking I know was profoundly changed from each move just because the intellectual atmospheres and sets of ideas that were at those schools were totally different. And that was because, even though at least for the last three the technology was already there, I still talked most of the people who were you know in my daily life and that we're spending time with them and so on.

Then the other thing just we, those of us who were there in those years, tend to idealize Chicago and it really was pretty great in that way but I don't think it was a product of Chicago as much as the times. So the times have changed, we were there, it was right before the beginning of the real, the identity politics wars which had a big effect.

But was also because that wasn't the technology and so on life was like way slower and you had way more time and so I think a big part of what's happened is everybody is overwhelmed these days with workshops and all the different things and the many things that come at you and papers from everybody else in the country who's sending them to you now so that you have to make choices that we did have to make. We commented on everybody's papers in Chicago but I don't think I recall getting very many from anybody outside. So that's just an inevitable fact, which again I think comes back to why it's important to have people close. 

Professor McConnell: We haven't commented on the culture and I do think that the law, universities in general and law schools in particular are not performing the function that they should have in modeling for the culture of the ability to be able to deal with intelligent people of goodwill who disagree. In fact, I think Stanford as pretty well, but I think looking at universities as a whole if anything they make it worse because to the extent that law, that universities or places where you have either more extreme formulations of identity politics and ideological and tolerance that begins in universities and it results in things like political rallies that are being disrupted violently by people who don't approve of the candidate.

America has, it was like this for the first number of years in America, but we've been pretty blessedly free of that for the last, our lifetimes and it's becoming, it’s getting to the point where political candidates can't hold rallies in public venues because of threats of violence. Ted Cruz was shut down in the Bronx. Donald Trump was shut down at University of Chicago circle campus, not the University of Chicago with the other the other Chicago. This is not, this is, I don't blame that on universities but I don't think we're doing what we could to improve it and we maybe making it a little bit worse. 

Dean Kramer: I don't know, well, I don't know quite where to begin with that. Partly I don't think we should be Pollyanna-ish about the past even in our lives the sixties were a fairly difficult time, the '85 to '95 was a fairly difficult time. I think all across American history. I do agree universities ought to be a model for how to do this and aren't always. Although I think again it varies a lot university to university, it varies discipline to discipline.

I actually think law schools do quite well in modeling this relative to lots of other parts of the university. But again, we're not we're not removed from society as I don't think it begins in the university begins outside, but this is an easy place in which to have those things blow up precisely because of the academic diversity in intellectual freedom certainly that is in the student bodies in most places. And so you get real tensions and real disagreements.

I mean and of course to the extent that it started anyway it's Congress that's modeling how not to do this for the whole country and they've been modeling how not to do it for the whole country for increasingly for thirty or forty years. So there's so many, it's just hard to detangle, disentangle. It is nevertheless the case I totally agree that if anything there's a special responsibility and obligation in this setting to model how to how to argue and debate and listen and learn and not just dismiss somebody because you think they're wrong.

Professor McConnell: Let me say a word of praise for two organizations in law schools and I think I've made a huge different. And I'm referring to our hosts the Federalist Society but also equally the American Constitution Society and they both have the same modus operandi, which is they bring their conferences that the audiences are homogeneous. So you have been pretty much all conservative libertarian group at the Federal Society and an all liberal progressive group at the America. But the panels that they're listening to are deliberately mixed. I'm speaking at the ACS national meeting this summer, Fed SOC always has it may not be perfectly balanced,  but it's at least more diversity than most then I can think of than any other place in American life. I wonder if this might be one reason why law schools are a little less insane then other places like sociology departments.

Dean Kramer:  English departments. 

Professor McConnell: But in any event I think those organizations are doing actually, those two organizations are doing more than any law schools that I know of too actually, it's not their purpose in life that isn't why they chose this model but that's the effect of it. And it's I think it's been great. Which is one reason I make it a point to go to speak at ACS meetings is because I so appreciate the fact that liberal professors speaker Fed SOC events and I think the product of this has been so constructive. 

Professor Meyler: So I want to and pick up on something that both of you talked about in terms of the relationship between ideological and methodological diversity. So I Nick Rosencrantz and his article about intellectual diversity and the legal academy points to a problem of the potential for intellectual homogeneity on some faculties and I'm wondering what you think about the relationship between an ideological and methodological homogeneity in terms of the problem of intellectual homogeneity. Do you think that there is a way of differentiating between them? Are they both equally problems? How would you think about that?

Professor McConnell: Well Larry earlier said he thought that methodological issues are often the most contentious in universities that isn't my...

Dean Kramer: Not the most contentious, the hardest, actually often because there's no contention they're the hardest to actually change. So you will have whole departments or whole schools that are methodologically uniform, never becomes contentious. They're just not open to even...

Professor McConnell: But I was going to say that I'm less worried about that. I think if I did think that was as deeply entrenched it would be just as bad or maybe even worse, I don't know. But it's not as bad if you have one George Mason which is dominated by law and economics and one Michigan that doesn't have it at all. It's not good for their students, but in terms of the entire ecology of higher education, some political science departments are very empirical and others are something else, like focused some focus on political theory or some focus on institutional studies or they're actually I think five separate disciplines that have nothing, no relation to each other that all call themselves political science. There are some departments that are diverse and then there's some that are very associated with one or another of those approaches. It may not be the best thing in the world but it doesn't, in terms of the entire picture, it's no big deal.

The reason why the ideological side diversity is such a big deal is that it is so systemic. It's a little bit like if race, if with race we had two equal, white and black had not been, one had not been subordinate and they were of roughly equal size, I doubt that racial discrimination would ever made would, would ever have been a huge issue. The problem is that there was a majority that was oppressive and a minority that was oppressed especially, but not exclusively, in one region. So everything was like that. I think modern day American academia in an ideological sense is a little bit like the Jim Crow South in that it's not just that their separation but there is a sort of systemic one sidedness. 

Dean Kramer: So let me then, and then we'll get into them, maybe some of the more contentious issues that I have avoided saying and I think about Michael is...

Professor McConnell: Well I keep trying.

Dean Kramer: I know, I know. I just wanted to give Bernie a change to get through some of these other issues first. 

Professor McConnell: She's the moderator, I view myself as the, what's the opposite instigator? Inciter?

Dean Kramer: So first, on the methodology point, I mean one of the things as I said, my point was you can really get methodological tyranny in a way that, you know, and we see this with all sorts of different methodologies and different places can be really really bad. It's bad for the intellectual growth of the institution as well. One of the things you're seeing and you see this in law although I think not just in law, is increasingly methodologies have now map onto the political differences. Right so I don't know any liberal originalist, I don't know any there may be one or two.

Professor McConnell: You haven't met Jack Balkan?

Dean Kramer: No he doesn't count. He doesn't, it's not originalism, he just slapped the label originalism on Ronnie Dworkin and took credit for it, I mean seriously. So maybe there's one or two but you really are talking about methodologies that map heavily onto the ideological differences and that then heightens everything. So just worth keeping in mind.  

In terms of where schools are, so there's just I think a whole bunch of points that we should make. Clearly I couldn't sit insist no actually there's roughly equal numbers of liberals and conservatives teaching. We know that's not true, everybody knows that's not true. There's all sorts of different explanations offered for why. I mean I have no idea right, everything from people are conservative they don't they don't try to become teachers because all they want to do is go make money. I mean that can't possibly be right.

It is clearly the case that if you do the ALS hiring pool year after year though there is all heavily predominance of liberals on the market relative to conservatives, maybe that's of course because conservatives get discouraged because they don't think about the positions. Although then I guarantee you talk to the liberal faculty were doing the hiring and they willtell you that they are engaging in the same kind of affirmative action, looking for good conservative as they are in all the other categories, and how was this at all different and it's not. And I think all of those things are true from the perceptions of the people who are pushing them. 

I mean for me if I'm really honest with myself, I would say the following. So one is, again come back to an earlier point, I think in law schools there are exceptions to this. But in terms of teaching the methodologies and the points of view, in general faculty are pretty good at not just teaching their own ideology. And one of the things that makes me nervous about this debate is the more we have it in these terms, the less true that becomes.

So are you when I used to teach this I used to say you know if you read historically the way representatives understood their role as representatives in the days when people talked about representatives as working for the public good and so and then we shifted into this world in which public choice theory has overtaken and now the relentless messages that what representatives do is they look for maximizing their votes, looking to cater to their interest. That became increasingly true, it was always true to some extent of course. But it became truer and I do worry about sending the message that the reason you need to hire conservatives because they're going to teach conservative ideology in their classes and you'll get into this kind of situation, I've sat in on both of their class at different times and neither Michael nor David Strauss were, Michael wasn't teaching a conservative ideology and David wasn't teaching a liberal one and if you're a good teacher I think they would identify when they were saying what they thought, as opposed to but you were always pushing people to have the views.

Now, problems that we talked about right about why it's still good to have people with different views because I can teach somebody else, I can teach you know the way a conservative thinks about original ism but not as good as somebody who fully embraces it. My arguments and where I've already decided they end and I'm not pushing back on myself quite the same way unless they have somebody who will push on me. So you need that there that is for sure. 

So why do I think it happens as little as it does? And this is partly where the methodology overlaps with the ideology. And partly just you know I mean let's be honest and this is why I'd say if you're taking a class with somebody who has a different ideology, push back, think, but when you get to the exam don't be stupid, right.  That's not because the person wants to hear what they want to hear. It's because it sounds smarter to them. They spent a lot of time thinking about this and these are the conclusions they've come to and that's true on both sides.

So what happens is they, think of what I talked about it Michigan. I was basically saying to them I know you think law and economics is stupid. So take that for granted, recognize though that we should have been here and who's the best law and economics person you can find. That's a really hard mental exercise. So people will sort of, if you're liberal, the conservatives they just don't sound as smart to you and you're engaged in these really difficult hiring decisions with lots of people and vice versa by the way. 

So I think the bias that is implicit, it's in some sense unavoidable that's why it is a kind of affirmative action in an appropriate sense. You've got to work really hard to embrace people whose, it's not just that you disagree with their ideas, you disagree with them because they seem to you patently wrong because you've thought about this for a long time. We just need to acknowledge that. 

Professor McConnell: I think I agree with all of that except that and I even agree with the portion where Larry says that there may be some unfortunate side effects to bringing this issue more to the fore, and what he said make sense.  I don't really want more bifurcated more ideological teaching is not to my mind a good thing. But I do think and I don't think I didn't hear Larry disagree with this, that if a great deal of the reason for of the relative homogeneity in hiring is a kind of a non-bigoted, non-deliberate, cultural backdrop that this is, I'm just more interested in certain subjects and I find certain ways of approaching them more persuasive and I don't ever question that. I'm just going to go ahead hiring this people are just like me, that's what I'm going to do if I'm unreflective.

In order to cure this problem, it actually requires that hiring committees think about what they're doing and that and even if it has some unfortunate side effect. But they have to they have to ask themselves okay I know I'm more interested and yet another race gender theorist/ I'd love to have the seventh one on the faculty to talk to and I'm not interested in guns but maybe I should interrogate myself and think in this great world of ours, other subjects are interesting to other people and maybe it's maybe it's my problem maybe it's my narrowness and not just the natural thing. I think people are not, if people are not asked deliberately to think about this, they're not going to. 

Dean Kramer: So let me just really flush out right. So one is absolutely the point of saying that this might underscore and create more ideological teaching isn't to say therefore that's why you shouldn't do it. That's a cost we should be aware of and why it's important as we go through this constantly to send that message to ourselves and to other teachers. You can't do that, right. Make sure, it's really what we care about it teachings people who make students... and challenge them in different ways and what your own views are kind of beside the point although you should flag those as you go along so people know what they are and can think about that as well. 

The problem, the psychological hiring problem as I see, it's more complicated because, so take the true facts. One is for whatever reason maybe self-fulfilling, let's just say liberals versus conservatives in hiring in law schools you got a relatively smaller number on the market every year. And it is in fact the case that whoever they are some are good and some are not good. Right, so you can't just say oh somebody is an original let's just hire an originalist because we want originalist, you still have to persuade yourself that this person is intellectually strong enough to be on your factor, on your faculty so you start with relatively smaller numbers. It is the case and higher in the matter what it is, tiny percent of the, place like Stanford certainly, tiny percentage of people regardless of what their field or ideology is we're going to get through the sea of it all and so smaller numbers, same sieve, the sort of deep.

So I think people are psychologically trying to do... I'm sure. I've sat in a million hiring committees, they're psychologically trying to do this. It's just, as I say, it's difficult but the inevitable effect I think the cumulative effect of these is where it is and so let us not kid ourselves it's going to be a form of affirmative action exactly in that sense, I come back to the earlier point which is my affirmative action is you're just like biased in your hiring right. That's true for every single one, pick your category whatever it is. There's just different views on who's good and who's not or who's good enough and who is not good enough or who's great and who's...

And so the interpretations that we put on each other's judgments, we have to exercise the same sort empathy for what the other person is trying to figure out and maybe we can make some headway that way but there's going to be disagreements and as long as the numbers are where they are it's going to be a hard move to make. 

Professor Meyler: So we've all been accepting the idea that intellectually diversity is a real concern on university campuses, both in law schools and elsewhere. I'm curious about your take on this recent John Shields and Joshua Dunn op-ed in the Washington Post where they self-identify as conservative professors and say that the concern, what they call the right wing hand wringing about how your education is over blown, after interviewing 153 conservative professors in the social sciences and humanities we believe that conservative survive and even thrive in one of America's most progressive professions. So obviously the numbers are the same as on the left or liberal side, but their claim is that there's general satisfaction among conservatives within the academy. So what do you think about that? 

Dean Kramer: I'll go first because Michael, on that one, I don't have the experience directly. I would say for survive and even thrive I would like to think that we would have a better, higher threshold than or target than that. It's like oh okay we can feel good because they survive and even thrive. And of course, clearly to some extend people stay in the academy because it's a great career even with whatever drawbacks there are from the perspective of an individual professor.

Beyond that, I have, absolutely have witnessed some incredibly bad behavior on all sides but the same disproportionality in numbers produces disproportionality in the bad behavior even if it's at the same rate over the course of my career. I don't know, this would really be, what's your? I've been on two faculties with Michael, Chicago was different when were there, it was also different politically, I mean, and I think some is to some extent and Stanford, those are two very different experiences. 

Professor McConnell: So there's I don't think there's any doubt that the sentence you quote is true. Conservatives thrive and survive and even thrive in academia, just not very many of them. I think what happens is, I mean I love academia, I came back to academia from a pretty good gig so I...

Dean Kramer: Whose idea was that?

Professor McConnell: So I certainly survive and thrive and that's fine but I think that the obstacles are much greater I think that I am it requires people to certain thick skin. Certainly we can't go around worrying about micro aggressions. Macro, we can't even worry about macro aggressions you know we have to you just have to take it and it doesn't particularly bother me and so I can survive and thrive, not everybody can. 

But more importantly this article seems to be, the author or co-author is with us so he can correct me if I'm, it's really about the experience of conservative professors. I don't think anything about this should be, I don't think they are the objects of our concern. They're doing fine, anyway, I don't cry for them. It's the students that are most affected and of students, it is the liberal students who are the most affected. They are the primary losers because if you can go to college and law school and basically never encounter a serious challenge to your position you become intellectually lazy.

You begin to think that it must be that anybody who disagrees with you just wasn't smart because they didn't get into Yale with you and you don't have training in honing your ability to be able to persuade people who don't agree with you. I think it ought to be, this ought this conference should have been sponsored by the ACS and it ought to be liberal students who were clamoring for more conservative professors. The fact that some conservatives are able to survive and thrive in that academy is true but I don't think this says very much. 

Dean Kramer: So let me, again these are in some sense different points. So first I, who's the author of the article who's here?

Professor McConnell: John Shields.

Dean Kramer: Oh, okay. I actually liked the article quite a bit although what I read it is mostly addressed to something slightly different. Which was outside the academy the language that used to describe because on inside the academy is pretty extreme and hysterical. And so it was just some extent I think a reaction to that. While I would say this is to me one of the weird things that I've observed, and this is mostly outside discourse. So the Stanford, I can say this to a certainty actually, although I'm probably not supposed to know, but that the Stanford faculty when I was here was about a third republican. I would talk about this with...

Professor McConnell: You mean the law school or the university? 

Dean Kramer: The law school, the law school. So this is the story, when I would talk to people if you ask people who they voted for regularly which party but when I would talk to people outside the law school they have this perception that like there was just Michael. And of course that was for two reasons. So one was field, which was actually where they actually cared about and were thinking about where the public law scholars. So the corporate law scholars, the law and economic scholars and so on, they didn't enter into their mind. And two, they didn't count as conservatives because they were they weren't movement conservatives. They voted Republican but they weren't anymore movement conservative than I'm movement liberal.

So the thing that's just distorted in that sense, so what you were really being told to hire was not conservatives but conservatives of particular stripes in particular fields. I think the field argument is actually plausible because public law is across the whole array so important part of legal education and just having a bunch of Republicans for whom their political affiliation wasn't all that important teaching corporate law and securities law and law and economics doesn't really serve any of the purposes that we were talking about. But the outside discourse just doesn't acknowledge that any of that is is the reality of what's going on inside at least law schools. The other point...

Professor McConnell: Can it be free, before you get your next. I'm rather surprised....

Dean Kramer: Always are!

Professor McConnell: So what I would have said...

Dean Kramer: I can go through the people.

Audience Member: [00:47:00] inaudible

Professor McConnell: What I would have said is that there are I think I could count three and a half republicans not because he's half a Republican but because he's half here and half in the business school, so he's a half time appointment. 100% Republican but only half in the law school.

Dean Kramer: Actually it's half in the law school, a quarter in the business school and a quarter in Hoover.

Professor McConnell: Okay, some of the people who are I would regard as fellow conservatives on sort of economic policy issues, I always identify as Democrats. So if there are Republicans, then they keep, I'm just unaware of their existence.

Dean Kramer: Right, because they didn't care and by the way there's also that the similar assumption, I think probably accurate about a lot of people on the left. For who you know their ideological things they don't carry much weight on way or the other in terms of what they're doing but the assumption.

Then my other favorite thing I got to just say something about this which is that I love this thing. 94%, 94% of faculty this was about Stanford but the numbers are similar elsewhere donated to the Democratic Party which was an interesting fact what they didn't pay attention to with only sixteen percent of the faculty donated at all. Right so what you mostly have is actually a faculty, now of the sixteen percent that donated, 94% of them donated to the Democrats and I suppose if that you know, which I don't, that translates across all the people who aren't contributing to anybody but where the other than to tell you something but it mostly tells you is that most faculty really aren't all that political which I think is actually true.

The other point I just want to touch on is about students. Because and again this is just really go through a different point that it's always been a sort of particular issue of mine which is the vast majority of learning that students do is from each other not from us no matter what. The reason to come to a top law school is not, and I always used to say this is, not because of the faculty although the faculties are good it's because of the other students that you're going to spend most your time with and you must you're learning from its mostly osmotic. And just in all those conversations that are happening over the three years that you're in law school or I think this is true for almost any program, not so much for PhD program because of the nature of it.

Of course it's interesting where you look at that the student bodies are, you know, there's much more robust. And that's because of course when you do admissions you don't have any way for the most part to tell that the ideology of somebody is, if you were really desperate to look at it you could. But the fact is it's so competitive you focused mostly on the numbers that's about eighty percent of it no matter what and the rest of the stuff around the edges you really are looking for all sorts of diversity that cut across your ideological lines. So you get a relatively I think fair representation of the applicant pool in the in the ultimate student body. 

The federal society was I think, probably still is the single largest student organization at Stanford. It's always have really robust representation probably, I could not tell you the percentage of students, what their ideology is one way or the other, other than that it may not be now but it was at least while I was here. And ACS came in a very distant third or fourth and so it's worth keeping in mind. 

Professor McConnell: Wine tasting was number two.

Dean Kramer: That was just an event. 

Professor Meyler: So I mean that's a question that I also wanted to ask which was about we've been talking about ideological diversity as though it's sort of a dichotomy between liberals and conservatives and I'm wondering in terms of operationalizing an idea of I intellectual diversity whether that's really the best way of thinking about it because we've just heard that maybe there are more people voted Republican than we imagine or... But is that really what we're looking at or is it a particular presence of a kind of political affiliation in scholarship or what are the ways in which we should be thinking about ideological diversity in terms of selecting faculty either at the law school or across the university. 

Professor McConnell: Well it depends on how large your institution is. But you know ideally we would recognize more than it's not a left/right I don't really think we have a lot of a clear left/right spectrum. Certainly libertarians are a different kind of animal than social conservatives. They're left libertarians and right libertarians too. There there's the cultural left and then there is an economic left that sometimes is, I know some people who were all in this sort of almost Marxist style concerns about the economy who find identity politics repulsive. So there are different views. The more, I just don't know as a practical matter. 

Dean Kramer: It's the wrong way to think about it too. In the relative hiring decisions, there's like a ton of factors so you grab it where you can, in whatever form you can, if it works for to help make a candidate seem like someone who on the whole are they in a field where we have needs, do we think their work is really good, can they teach.  I mean all the different diversity factors just kind of grab when you can and if somebody's, the net factors add up to somebody gets over the threshold that we think we should make is higher in the faculty we'll approve it you grab it. It's hard to do better than that.

I do think just to underscore something Michael said also our lives, his and mine have been interesting and that the political issues, the different divisions have gotten sharper and stronger but they haven't fundamentally changed and I think we, periodically in American history you get a really resorting of issues, where you then get a resorting of where people are along whatever the ideological spectrums are that we're measuring. I do think we're at the beginning of a real resorting of a type that we haven't seen for a long time. So all of these categories will change although the basic problem won't.

Professor Meyler: So we obviously all agree or the two panelists agree that there is a lack or that there could be more intellectual diversity. But I think there might be some disagreements about the cause of that. Do you have thoughts about the cause of the lack of intellectual diversity that you want to expand on?

Professor McConnell: I'm not sure we do disagree. I think we both reject the conservatives are stupid hypothesis. 

Dean Kramer: They just seem that way because of the intellectual framework. I think how can you be an originalist? 

Professor McConnell: I think we both disagree with the claim that conservatives are just not interested in academia, and that they are going into greener pastures, making more money elsewhere, I just don't see. We heard a panel that had some numbers on this but just in terms of my experience with people, these claims strike me as not having any validity.

Then you're left with discrimination but I think it's important not to lump all kinds of discrimination together and I, Larry and I probably, from what he was saying before I think we agree on the kind of discrimination it is, which is not, maybe there's a little bit of deliberate I don't like those people, let's keep them out, I gather Professor Shields finds, in some school, you didn't mention law schools but in some departments, alarming large numbers of people say these just won't hire a vote for a conservative for a... but I'm inclined to think that's not actually a very big part of the issue and I think it is a kind of unexamined set of tastes having to do with what issues are important and what lines of arguments make sense.

I think that there is some equation of conservative politics with in and of itself because of what they believe it's discriminatory. I have a friend who gave a job talk which reflected his view that Roe vs. Wade, not only does he think Roe vs. Wade is wrongly decided but he thinks abortion is not exactly a warm and fuzzy things. And he was asked in one of the office interviews do you think you can teach our women students. So being, your stand on this issue is equated with prejudice. I think there's some of that but mostly it's what, it's what Larry was talking about. And it's very, it's going to be hard to combat because I think most people, for most people they're not even thinking about ways in which there is a sense of interesting and what's persuasive and so forth is colored by their perspective. 

Dean Kramer: Yeah, so I think it's even harder than that. So first there is even law schools I mean I can think of the rare colleague who is open and explicit about their politics and that they won't hire somebody whose politics are different than theirs. They always had zero power within the faculty as a result of that zero, and that's no matter where you are. I think the things that make this harder, things we talked about but I want to underscore which is, as I say, there is a blending of ideology and methodologies increasing not a blending, there's a coincidence of them.

And so you can find, like I actually don't think I'm particularly biased against conservatives, I think I'd probably feel the same way about a liberal who was there have been liberal originalist, actually I do feel the same way about the one liberal who claims to be an originalist and your other ones in the past you know your Douglas and your Black, I have a lot of trouble with that methodology. I spent years thinking about it and all the problems. on the other hand has been really great for me to have actual originalists that I would talk to all the time who would push the argument, got much more advanced and sophisticated and difficult but still at the end of the day that's a hard thing for me. 

And it's not because of the politics of it but inasmuch as there is increasingly a coincidence you going to have an effect that way and then the other thing is it is a classic problem of implicit bias. And what makes this one, and this is a sense in which it is not different than race and the whole issue of hiring more minority faculty. And the interesting thing about this one though that is different is there is a judgment that is sort of objective but it can't really be objective about quality of work.

So the blending of that, you can't separate it, it would be easier if you just separate that out and there was this crisp objective analysis of quality and then you could say see it's nothing other than prejudice or bias against someone for their ideology. This leading the, you can't separate and given how difficult the judgment calls are particular in faculty hiring it's always going to be difficult no matter how self-conscious you are about it to really move. It's a kind of thing where until you get to a genuine tipping point in your faculty so that's got all the different biases represented equally that you'll get your result that might be different. 

Professor Meyler: So we have about twenty minutes left and it's time for Q&A from the floor. Yeah Artemis?

Artemis: I have a question [00:59:02] inaudible. So the first thought/question is it seems that a lot of what we've been talking about is about diversity, [00:59:11] inaudible. But it might be a case be made for diversity we each have a bit more role. So instead of just having a more fair representation of off-mainstream use have something else, with something exciting and new intellectually. So one thing I find for our law school is that the trenches are clearly marked so one side is the likes guns and penisis, property rights and having that there. Whereas the other side likes race and gender and has their methodological with it. [00:59:42] inaudible So there is the diversity argument that you're even involved in [00:59:47] inaudible. 

Second problem. What happens if whether we have a trade between diversity intellectually and diversity in a more communication way. So I mean I don't think it's a secret that, the conservative faculty have to be more right now and the more work diversity in terms of representation  following the passage very liberal. So if there's an extend traditional and capital trade, having a more representative faculty, I don't care if liberal vs having the one direction [01:00:17] inaudible there has to be more of a particular, a scripted tower. How can we push through that? 

Dean Kramer: Just on the first point I would say yes to go back to the first answer which is there's a million forms of diversity. This one comes up so much because it is one of the ones that out in society is very important demarcation line around which our public debates are being organized, our public disputes are being organized, people bring it in it's what they care about. So that's inevitable.

That said of course to my mind of that critique is this is what I was trying to get at with methodology. It's really hard in any field at any time, right, to break in with a new methodology and get that accepted. That's been always been true for not just academic disciplines but probably especially true for academic disciplines always will be. It doesn't raise quite the same flags because it doesn't touch on any of those sensitive issues out in the larger society but it's a it's a huge problem within universes. 

I will say we had big issues with some of the departments when we started the interdisciplinary stuff some of the departments it was like we can't find anything to do with you because you all do X and I don't want to name departments but it was, for forty years you've had a department that has exactly no intellectually methodological diversity and here it was. But they were ranked really highly as a department so they have no incentives to change and you know that's that is kind of built in. 

Professor McConnell: The second part of your question, or your second question which is the connection and possible tension between more intellectual diversity and race and gender diversity. I think it's a problem more so probably for race than it is for gender but it's a bit of a problem interestingly Jim Lindgren's research indicates the, I believe he found that the most underrepresented group, correct me if I'm wrong, is white Republican women even though you know they're actually huge numbers of them in the population are they tend not to be...

Audience Member: 80% of all white men vote Republican, and white women vote Republican. So there's an imbalance for Republican. So the groups that aren't represented, it shouldn't be that a lot, but if those are...

Professor McConnell: So that ought to be a place where you could get both and also just one other thing is and it least anecdotally minority conservatives may suffer the closest thing to an out and out nasty discrimination on the grounds that they are often regarded as traitors to their race and get treated quite poorly. And that's surely something that should be condemned. 

Professor Meyler: Jim. 

Jim: So on the donation data that Larry was commenting on. Nationally 29% donate. And the survey data on nationally is there. So the idea that we should be more... 

Dean Kramer: That survey data, what survey data? I mean in terms of...

Jim: Saying we're all law professors, top 100 law schools 56% response rate, 13% identified as Republican and Republican's 8% [01:03:32] inaudible. Also it understates the problem. You think about the Republicans in the academy, most of them I would agree with affirmative action, as I do, most of them agree with all sorts of issues that can lean toward the liberal side. We were surveying founders of the Federalist Society, making a almost a bill of the U.S. compilation. On the other hand a lot of people in Washington called politics are in favor of abortion, which again I do, public gun control, or favor control gun control, a whole bunch of, gay marriage, we've went out and did this issue. So as they're far to the left of this [01:04:13] inaudible, but whatever

Professor McConnell: Can I just, yes. As I say, it underscores for me what really tends to be at stake here is it's very specific people want a very specific kind of person who has a very specific kind of politics. And that's what, we're working in certain fields with certain, so I just worth noting that the debate is not, we frame it in terms of diversity as if we care about are all these different things. And on the left same thing by the way it was always really frustrating what it boiled down to what you could do one hirer after another that fit some broad sense of categories and you were never diverse because people are looking really for one particular thing.

Jim: But the main thing, the main problem I had is that you had suggested that the faculty was one/third...

Dean Kramer: Mine.

Jim: One/third Republican. Since I've been here I've been asking people who do lean to the right in the faculty how many there are and they're coming up with numbers like six or seven. So that would still nine [01:05:10] inaudible Republican. You're talking about maybe 17 people. If you really have ten more conservatives and they're so scared that their dean that if they are conservative or lean libertarians or all of that. But if they won't even tell other conservatives, I think that that's a really serious problem. I think....

Dean Kramer: Okay, so Jim okay really nice provocative accusations, yes they just they were all scared that I was going to fire them if they right, that was exactly what was. 

Jim: I don't think that was so. 

Dean Kramer: Right, so, no, no, but what I think what it is there's a very large number people who most of the faculty has no idea what their politics are one way or the other because they don't wear them under sleeve at all so I think if you ask most the liberal faculty don't give you the same numbers. As I said and one of the unique things about the position of dean at least for me I did it, was the relationships I developed of people over time I could go through, I mean I'm pretty confident that they weren't lying to me, I think they just didn't talk about it generally. I think there are more people like that than you think and the faculty share the same perceptions not exactly misperceptions except in a numerical sense sure the same perceptions as everybody else does.

Jim: Harvard for 25 years according to Chanel, I'm not hiring any conservatives, libertarians, or Republicans at the assistant professor level. They'd hire established stars but they wouldn't hire assistant professors. Can you name any conservatives or libertarians or Republicans outside of the business and economics area which we talked this morning is an area where conservatives are concentrated, at the assistant professor level that have been hired in less than a decade. Hire established stars, I can think of...

Dean Kramer: Michael was hired as a junior faculty member at one point, I think right. Yeah. He was hired as a, he didn't start out as a...

Professor McConnell: I didn't spring tenured from the head of Zeus. 

Dean Kramer: How did all the established stars become established stars they got hired.

Jim: But getting hired as an entry level, you hired him. 

Dean Kramer: Well Chicago, will he was ahead of you...

Professor McConnell: Actually Stanford did offer me an entry level position.

Dean Kramer: He got hired at the entry level, he chose Chicago. 

Professor McConnell: I chose to go to Chicago. 

Dean Kramer: For the reasons that are why we're here. 

Jim: Are there that you can think of and if you can't think of...

Dean Kramer: We have would be all the people who are established stars or upcoming, Nick you know, all the. I mean think of the people who are at the schools that have greater representation in the public law field so they'll be Virginia and Chicago and...

Jim: Northwestern.

Dean Kramer: Northwestern, yes Northwester. Right Steve, and Joe. Again the numbers are not proportionate but it's not...

Professor Meyler: I'm sorry, just yeah. 

Audience Member: If it's agreed that there is significant imbalance and it is agreed that that is a problem, it seems to me that there are two ways that one might approach the problem. One would be trying to reduce or eliminate the imbalance or the other would be to mitigate the press. And since I don't think it's likely that we're going to do a whole a lot towards eliminating imbalance in the foreseeable future, it does seem to me that we might think about mitigating the press.

You talked at the beginning about when did this concern arise. 65 years ago approximately we met quite the junior post that we'll call God's name in Yale and I think that is probably when this did become a politician vs [01:08:53] inaudible. My understanding is that there was a tremendous outcry about it, because nobody really raised this question before. There was a whole degree of controversy about what numbers you should be right and what numbers you should teach and how you should teach it but not this concern. 

Now I was under adviser at Yale ten years later than that. And I was in one of my conservative periods. And I think that the concern of the students at Yale that I knew were very aware that the faculty was overwhelmingly democratic and liberal. But I think that the way they felt about it was a combination of some annoyance, and a considerable amount of sense that this is part of the human comedy, that this should be the case. And conservative students love to talk about run ins that they have had with liberal faculty and arguments that they had had. So as far as we could tell the liberal faculty members loved that too, it was part of the whole experience and it was, perhaps it was not ideal but there was something healthy about it. Or at least something healthy about it in the environment in which it existed and so it does seem to me that that's possible. 

So Dean Miner suggested that we maybe antagonizing the problem by having these kinds of discussions. But it seems to me that whether or not that's true, we might think about ways both in law schools and else in the university we could think more about trying to find and discover and teach what is true. To try to remove of some the cynicism to the classroom both in law schools and else, and law schools, how many students do you hear say oh the judges do whatever they want.

I think law schools ought to go back to really taking what we do seriously, not only as rhetoric but as adversarial craft although it certainly is that. But we know that sometimes that people are persuaded and I think that we ought to have that as more positive part of what we teach. And then also at the university it seems to me if English professors taught English literature, if we just had to depoliticize the curriculum, which I personally think would be beneficial for other reasons, but it seems to me that would be a most fundamental way of getting that to follow and trying to forget. [01:11:49] inaudible.

Professor McConnell: Just that that's even harder than balancing, that seems to me if that's controlling the effects I'm going to devote my efforts to attacking that condition because what you describe as I think even more utopian. What you're saying is that every professor ought to examine his or her heart and become platonic something. I think that's not going to happen. I wish it would I love every word you said but I'm not going to hold my breath. 

Dean Kramer: No but there it is they conversation is important, that's what I was trying to say. Obviously we should, it's not that we shouldn't have these conversations at that how we have them matter. We can have them in ways that actually exacerbate rather than alleviate the problem and that's how comes as often as not because people aren't thinking about what the problem ultimately is and are just looking at the surface problem which is a problem but it's the deeper problem and you don't want to lose that.

Audience Member: True data and one puzzle. First data on the question of being savaged for discrimination in the academic world. A few years ago I had a blog post on UVA.dive.cost and somebody pointed out that they'd actually driven a clear future Nobel Prize winner in an entirely different field namely Barry Marshall who got a Nobel Prize in medicine for finding the pylorus. And that was at least as represented to me as a case where he had unconventional views, therefore he's not making use around platform. 

Second point which I think may go in the opposite direction from what Larry Kramer was saying. I have data from the student end on two undergraduates who enrolled in my law school. And it's down from all of those that the students are more political mono-culture than the faculty are. And at least at two out of three says though the students are more hostile to people who don't fit into that mono-culture that they've got. Chicago's the exception with Chicago is reported to me that the students mostly laughed but their reaction did not bring metho-systematic abstain. Whereas at Oberlin the reaction was you must be evil or stupid. But that did seem to do with the faculty.

Third point which is a puzzle. And that is in deciding what counts as diversity you have somehow in the back of your mind an idea of what fair disruption is. And it's not, and I'll tell you where it comes from, there are presumably communists who would say that Stanford is entirely a right wing faculty. And as Michael knows, I regard him as a left winger because he takes a socialist view on important industries such as making and enforcing laws. Which makes me not like government, outrageous I know.

And what that suggests is if you are thinking about if you're thinking about it in terms of use and truth it's not at all obvious that there is conservatives that every knows is right. For one person to say oh you can't be with that communist, fifty percent of conservatives it's the liberals in the United States, fifty percent anarchists, fifty percent sadists of various sorts.

So I think Michael's additional comments to some extent suggested that the real criterion or the distribution of use in general society. That was your doing is training students who have to be able to face what they're going to face when they come out, then you would probably say there were any communists, any anarchists, therefore they don't really, it's nice that they know about what's really integrally important but it's important that they be exposed to those views they're likely to face. That's a possible answer.

But that's a very different answer than the one that I'm inclined to make which is in favor with truth, you don't learn ideas very well from people who don't believe in them, and you therefore would like to have somehow measure the range of defensible opinions which maybe if you're reasonable good at it you say well how many opinions are there where I found some smart person defending them. That that would be the range that you want to predict. Two different approaches and I was wondering if you'd thought about this sort of natural tendency to say well too fold vision that's the way the world works, fifty-fifty that's a fair result. 

Professor McConnell: Well I think it's a fair point because when we talk about diversity we're really talking about reasonable representation among the reasonable range of views and that has a huge totalitarian danger to it because it means that there's something, that there's going to be some views that are far enough off that chart that we don't even worry about that them.

In a sense, from the point of view of those views it's really worse to be one of those than in world where nobody is worried about diversity at all. I think that's a problem. I don't think it's a big enough problem not to do it but it is certainly a problem. And the tale of the distribution of people who think I'm too far left wing, is sufficiently small that they are going to not be considered for as within the reasonable range that should be. 

Audience: You don't think [01:17:23] inaudible. 

Professor McConnell: The comment about students I just, I do think that there are probably places like Oberlin where the student is as more mono-chromatic than maybe the faculty, although I don't know what the faculty there is like. I don't think that's true of any major law school in America though, I think every law school, the student body is more diverse than the faculty.

Dean Kramer: And for good reason though, the reason is by the time people apply to law school they're thinking about what comes after law school which is their careers and what drives the decision is usually going to swap that for most people, they're going to go to the most prestigious school that will get them the best jobs after. 

Audience Member: The observation for Oberlin was not so much that the faculty was more adverse, but the faculty was more tolerant, that their response to pointing out to something that said something left wing. You're assuming we're all left wingers to be apologetic. But that wasn't the response you gave. 

Dean Kramer: But I do think there are undergraduate schools...

Audience Member: My observation is from my law school and that was in a report from a student that I have a good reason to trust the judgement of, since she's about to marry my son. 

Dean Kramer: Yeah, I wouldn't assume that. You have to. 

Audience Member: I have firsthand data on the subject

Dean Kramer: Yeah, I just want to make a comment.

Audience Member: Her observation was that it was not comfortable in a class to make a conservative libertarian point because of the reaction of the other students. 

Dean Kramer: Yeah again so I think there's an array and so I think there are undergraduates, more schools that there's a lot more selection, I think law schools less so but not that it never happens I actually when I comment on the first point. Which again is, as I said at the beginning you have to purchase pragmatically. I don't have a fair distribution notion of the back of my head I have a, like we want diversity there so many different forms of it and so many different kinds of things I'm not going to come close to all of them anyway so let's just make sure I get the ones that I can. But especially as a dean there are certain ones that are they've been defined as more important out there if I don't take them into account it's going to hurt my ability to do all the things that I know I want to do at school so that they get more attention than others.

Audience Member: How about saying that any form of intellectual diversity is a plus.

Dean Kramer: Yeah I would say that.

Audience Member: That includes the communist? It includes the anarchists, it includes the person who includes of the South African apartheid system.

Professor McConnell: My best economics professor when I was an undergraduate was a communist. And I took micro econ from him and the way he taught was each unit he taught micro absolutely straight and he was a brilliant and wonderful professor and then at the end of each unit he would tell us why he disagreed with the whole thing. And not only was that okay but that made the course even better so...

Dean Kramer: But there are going to be limits there are and it's going to be hard to draw those boundaries right. If I'm running a history department do I have to say the Holocaust denier is that's a legitimate position and therefore that's a plus to hire that person. No and it's not because that's not politics right? That it's a methodologically you cannot be doing so there....

Audience Member: ... a holocaust denier good enough.

Dean Kramer: Yeah okay. When you find one for me was really good enough.

Professor Meyler:  I think we have time for one more question, so yeah.

Audience Member: First I want to thank the panelists there's lots of new comers to the field, legal field, I think this is fantastically encouraging such conversations you're having. The questions I had comes from more of a student perspective. You talked a lot about faculty, heard a lot about faculty diversity.

As a student that is going to school that I find is close to the older roads, all the schools that are there, I was wondering your perspectives, your thoughts about motivating greater of exchange of students going to other schools, having more fluidity within the academy so that if I seeking out an atmosphere such as a Chicago or Oberlin or wherever, obviously law school but other areas that I might find more compelling or more interesting or just wanted more exposure to, allowing for greater fluidity within the academy for students as Rachel was saying, you have to be at Stanford for three years. 

Dean Kramer: So just say a couple of words about what you're meaning. Like how would you do that?

Audience Member: Yeah so let's say I'm looking to learn more about law economics and I go to Chicago because they're renowned in that space, I want to get the atmosphere of Chicago as opposed to the outskirt of DePaul and Stanford. I pick up a student at Chicago that wants to have a vice versa experience coming to Paul Waldo and having policies in place with not just the two schools but generally be having that allow for such exchanges and are really drawing the model. Because my knowledge of rotation system, that's where students get a look at a lot of different areas with experts in different fields and aren't necessarily all the same location, the same institution. 

Dean Kramer: So I'll just tell you so in concept I actually agree I think that would be great. When I was at NYU we actually created an exchange system with Columbia and when I was here I proposed one with Berkeley we were unable to make it work largely because of the distance so we were thinking not about going for a whole semester's but just sort of particular courses or things like that.

The problem is there's a level of protection and level of practicality. The level of protection is Stanford doesn't want you to go to just any school right. We don't want to take students from just any school and so that can get really uncomfortable really fast. It's hard enough as it is at the admission level. Then the other level of practicality is the financial exchanges if tuitions are different and so on. So it would be pretty difficult as I say, we were able to work out even at NYU the exchange with Columbia we've basically required equal number students and then had a financial exchange if you got to be an imbalance equal to the exchange but if it had got to be large would have died. Students could do it because of the subway ride and so. 

Professor McConnell: Most years I have a student come over from Berkeley. So there's at least some of this. 

Dean Kramer: For credit?

Professor McConnell: I assume, I don't know. Did you get credit? 

Dean Kramer: Could come or go right that was an enormously difficult issue right there and it's easier here than in any other university I'd ever been.

Professor Meyler:  So please join me in thanking...

3:10 p.m. - 4:40 p.m.
Political Correctness on Campus

Stanford Intellectual Diversity Conference

Topics: Civil Rights • Culture • Education Policy • First Amendment • Philosophy • Politics • Free Speech & Election Law
Stanford Law School
559 Nathan Abbott Way
Stanford, CA 94305


Event Video

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Political correctness in the classroom can be seen as a consequence of a lack of political diversity in the university. How does political correctness affect research, and teaching? Is political correctness all that bad, or does it have a proper place in academia? Professors Pam Karlan, Richard Sander, and Nicholas Rosenkranz discuss.

This panel was presented at the Stanford Intellectual Diversity Conference on Friday, April 8, 2016, at Stanford Law School.

Political Correctness on Campus

  • Prof. Pamela S. Karlan, Kenneth and Harle Montgomery Professor of Public Interest Law and Co-Director, Supreme Court Litigation Clinic, Stanford Law School
  • Prof. Nicholas Quinn Rosenkranz, Professor of Law, Georgetown University Law Center
  • Prof. Richard H. Sander, Professor of Law, UCLA School of Law
  • Moderator: Prof. Zachary Price, Associate Professor of Law, UC Hastings College of the Law


Event Transcript

I started when I published an article to Stanford on Law Review 11 years ago, and one of the first debates on it, I participated in, was in this room in March of 2005. So, this is an interesting, interesting timing to come back to. Uh, so, most of you probably know these things, but just to briefly mention them. The idea of mismatch is not an idea that is particularly tied to race. It’s the idea that students who attend an academic environment where their credentials are substantially lower than those of their average classmate, will suffer a variety of harmful effects, and applies to any type of preference, not just racial preferences. And its effect has been shown empirically to sort of operate in non-racial context pretty much the same it does in racial context. It’s also not about an affirmative action, particularly it certainly is related to the debate about the use of preferences in, in the university admissions, but key types of affirmative action don’t rely on the use, use of preferences. They, instead, are used to expand the pool or to rethink the criteria for making decisions. So, which we talked about in the context of the last panel or two. Applied very much to the context of admissions. It doesn’t have anything to do with the preferences per se. So, I think, maybe the most interesting intellectual development in mismatch is a growing awareness of those who work in the field that it really makes sense to think about first order versus second-order effects. In other words, if someone is in an environment, where their credentials are lower than that of their classmates, there are a party of things that might fall directly from that. And then, there are other things, that are sort of more diffused, more indirect. So, the direct things, or what I call “first-order effects”… and there are three types, I think, I have…have had some significant purchase in the literature. One of them is a learning mismatch. And that’s kind of what we classically think about as mismatch. Which is, that if your classmates are better prepared than you are, and the teacher sort of teaches the meaning to student, then you may disproportionally suffer and you’ll just learn less than you would, if you went to a different classroom.

Competition mismatch is different in some subtle ways. It’s not the idea that you learn less, although that might happen too, but that the competition is going to affect your ability to survive. So, for example, in the science context, if you imagine going to a very competitive university A or some of a less competitive university B, it might be the case that you would be in the same amount in both places. But at the university A, the competition is so tight, that you’re going to get a roll of low grades that you get discouraged and you drop out of your science major.

Social mismatch is also the idea that social interactions are also affected by the levels of academic preparation. And that people are more likely to hang out with other people, who have similar levels of either higher academic preparation before they get to a college or university, or that they are hanging out with people, who’re performing similarly in that environment. Get similar grades, or, you know, are stars, or are struggling… that those things tend to mediate how people develop social interactions at collage or at professional schools.

Second-order effects are those like college graduation or law school graduation. And there’re second-order effects, because there is no direct causal mechanism that he would postulate between the mismatch effect and the graduation outcome. Unless we mean it by something else like, well, if I’m mismatched in a school , then maybe I’ll get lower grades, because I’m learning less or because of the competition, and then that might lead me to not graduating at a higher rate. Uh, so, because they’re indirect effects, they’re harder to measure. And a general problem with higher education literature is overall, and mismatch, in particular, is that good data is often hard to get. So, if you’re using imperfect data and you’re measuring an indirect effect, then it’s very easy to miss the effect, or to get a measurement that simply doesn’t show any significant result.

This is a nice example of kind of a classic mismatch finding. This is from the paper that actually appeared about the same time I did my [internship in] law school mismatch work by Smithon and Carl/Karl, two University of Virginia psychologists who put it science mismatch. And this chart is showing the rate at which the students, who go into the sciences at very elite schools, same set of schools that were studied by Bowen and Bok in “The Shape of the River”, actually end up graduating with a science degree. And so, the center of the graph is people who have the same credentials as their classmates. So, they would be at the zero point here. And the typical student at that point has a 1.0 odds of graduation, in other words, they have the typical rate of graduation. And what the 1 is meaning here is that as your roll of credentials goes down, controlling for all your other academic and other characteristics that were offered in the study, which is, uh, wanted other characteristics. Your odds with graduating with the science degree go down. And as your rolls of credentials go up, your odds of graduating with a degree go up. So, this would, this might be a warning mismatch issue. It’s probably more directly, as it has a competition mismatch. But the point is that it’s a pretty strong effect. These things really substantially reduce or increase your chance of getting the science degree. It’s also notable that the bottom 2 lines on this graph refer to whites and underrepresented minorities. And the fact, that the lines are really essentially identical to each other, underlines the general point that mismatch is not really about race. This isn’t about Asian effect that you we could talk about QnR/IQ and air if we had more time. But for most students the race kind of drops out of the equation. Oh, so, how do we look at these different mismatch debates? It’s often said, remarkably often, that they’re really… you know, that the overwhelming weight of evidence is against the mismatch. But if you look at specific debates, that really isn’t true. So, law schools mismatch for example. There’s been written dozens of articles, critiquing law school mismatch. But very few appeared to review articles. Uh, I think, you know, we could say that there’re five or six now. Four prominent ones are listed here. There’s only one article, actually, that has been period-reviewed, that actually finds the absence in mismatch effects. And that one, you can argue, really doesn’t belong to the list, because it really wasn’t the tested mismatch. But some old studies, that have specifically tested mismatch and then have been published in top empirical journals, have found very strong evidence of law school mismatch. So, the weight of evidence now on this issue is quite overwhelming on the side, that mismatch effects do exist and they are fairly large.

Science mismatch. Again, this is only a partial list. The studies of science mismatch are virtually unanimous. Either finding strong science mismatch effects, or really not finding an effect. But almost always finding strong effects. There is no…There is no study, that I’m aware of, that has found that science mismatch doesn’t exist. So, you’ve got an overwhelming lay of scholarly evidence on one side of the streak.

Academic mismatch hasn’t been studied very much. But the one study, that was done, was by Cole and Barber. This was a book that was commissioned by the Council of Ivy League Presidency, who are really concerned about a pipeline of minorities into academia. And the commission called Barber to do a really large, well-for-an-answer survey of about 8 000 students and to try to understand what they [inaudible] people on the academic track. And much to the dismay of the Fund of the sponsors…

Cole and Barber found that mismatch was a really important causal problem. That students who went to schools, where they had a significant mismatch issue, were about twice as likely to drop off the academic track as other students. When they published their results, when the Harvard University Press had committed to publishing it… But the thing just kind of drop like a rock into the sea, there was no further discussion of the issue.

Social mismatch. Again, we’ve got a series of very strong studies, finding powerful evidence of social mismatch. Uh… Nothing on the other side. There were two randomized experiments, you know, the gold standard in social sciences, where you actually randomly assign people to treatment and to control groups. One at the Air Force Academy. One in Kenia. You can argue the Kenyan one is not reputable in higher education, because it’s Kenia and adult there weren’t much of school students. Well, it was a way most cited and specifically attributing to a learning mismatch. And found very strong, very strong mismatch effects. So, again, there’s nothing on the other side. There are two very highly regarded publishing… very top journals on the side views of experimental methods, and finding strong mismatch effects. So, if we’re looking at the first-order effects, the evidence …just to call the evidence overwhelming that’s almost an understatement. It, it is so one-sided, that it’s hard to almost say that there , there should be ongoing debate about it. Certainly an on-going investigation. With the law [inaudible] pretty much of consensus is found at this point.

Uh, second-order effects. The literature really is mixed. There you’ve got studies from the all over the map. One thing that is pretty noticeable in the literature is that the critics of mismatch tend to overwhelmingly focus on second-order effects and will frequently develop measures, that are even more accentuated and more indirect, that’s it’s possible with the available data. Partly, I think, because it makes it even harder to find significant results and easier to say there is no evidence of mismatch. So, I will concede them on second-order effects like graduation. There…uh…there’s very mixed evidence.

What are the most striking new developments in the field, and this is a brand new development, is the publication of this article by our city [hall and local hiring] /true economic literature. It actually came out. Well, I got my hard copy on Tuesday. And the true economic literature is the premiere place in the social sciences, where there’s an effort to identify fields, especially controversial fields, and sort of assess the state of the knowledge. And Jameal Commission or Arcidiacono and Logenheim who had different starting positions on the issue of mismatch to collaborate and to develop a diagnosis of what the literature said. They did took their draft article and sent to seven period jurists to try to make sure that all of views, at least, within the economics, were represented and reflected in the review. And then published it. Lead article on the first issue of the year. This article finds very compelling evidence of mismatch in several areas, particularly, competition mismatch in the sciences. Very strong evidence of law school mismatch. They equivocate more on the second-order effect. They didn’t really frame it in terms of first-order and second-order effects, which could have made their findings a little bit more…easier to adjust…certainly found very, very strong evidence. So, the extent, that their data was ambiguous, strongly said that we originally need to investigate. They did develop metadata to try to convert the areas. And the uncertainty of the areas, where we actually do have greater confidence.

OK. So, that’s the background. Let’s get to framework, in which this is occurring. Now we’re getting better data on law school mismatch, because we’re finally able to get data on individual school outcomes. We’ve been heavy-head by dealing with [Bronk…..better data] where large numbers of institutions are grouped together. But through litigation, we have gone to several schools to disclose distributions of the bar outcomes by LSAT ranges and other sources of information. And when you look at it that way, the mismatch effects are really overwhelming. For example. If you look at 153…150 to 152, you see a 31 per cent bar-passage rate for first-time bar-takers graduating from UCLA. Those are students, who are very seriously mismatched. But 79 per cent bar-passage rate for corpal students, taking at our control bar. You might say, or the other control bar, but that’s a pretty good comparison to come for you, because it has almost the identical NBE threshold. It had a couple of levels of difficulty at California Bar. Would you look at this data, would you do a regression analysis on this data, you’d find the mismatch effect is even larger than the absolute effect of credentials. In other words, effective being lower than your classmates in the LSAT scores is larger, uh, than the effect of outsider itself. So, if anything passing in literature is significantly underestimated, besides the mismatch effect. So, let’s go back now and look at the debates. Back in 2005, Stanford played a pretty important role in basically trying to persuade people the mismatch was a false issue.

Michele Dauber wrote an article, making a number of then accurate claims, and claiming that a mismatch was actually a fraud, analysis to “cold fusion”. Dan Ho published an article, in which he used and empirical tests, that would be pretty much obvious to anyone, studying the area. It was not going to produce significant results. He… well, he studied… I won’t go into the details with that now, it really was the study Isaac was designed to fail.

In 2017 Kramer wrote to the State Bar, urging them not to make available the data that would really make impossible to do a sort of exact measurement on mismatch. We have this down. And he was part of a large number of academics, who sort of came out, especially old school deans, who came out and essentially tried to persuade Californian Bar not to make data the opposite study mismatch. That was, that was successful. The Bar ordered not to do a study, not to provide the data, and we’ve been litigating with the Bar since that time to try to get them release the data. Actually, quite close to doing so now. They actually turned over the data to experts, working for the Platus/Pilatus. And we’re designing privacy protocols, that I’m hopeful, will be put into place before very long. Well, maybe I’ll come back to barring, so that the question is answered. But if you look at the public discussion of the debate about mismatch. You find statement after statement, especially in the wake of Justice Scalia’s comments on the mismatch in the December or arguments on Fisher. Where critics’ very heavily disproportion represented in the media, especially some of the Liberal Savage or media like the New York Times, and invariably will say, there is no evidence for a mismatch. It’s almost Odaba Rass or similar but this is, this is sort of, uh, hopes. This is a fancy that conservatives have about the existence of mismatch. And when you ask sort of, sort of digging in and say: “Well, what’s the kind of, were are they getting this from?”. The source that comes up again and again is the empirical scholars’ brief, which was the brief, filed in the official case. And it was…There were three Stanford professors, these three will play important roles in developing that brief. What’s striking about the empirical scholars’ brief is that it ought to be sort of the best brief statement about what’s wrong with mismatch there. It ought to be sort of the most cohesion response, because it has eight very eminent co-authors. And when you look at the individual claims on the empirical scholars’ brief, they are all demonstrable false. So what do they think about an article’s claims instead, it’s that in the law school mismatch literature we only use iterational comparisons. We use biases as a surrogate for affirmative action. Whites it’s a surrogate for the absence of mismatch. And you can argue what you really measure is a racial effect, and not the mismatch effect.

Well, Williams’ article in particular has 30 different models, all of which are interracial. So, the statement about his researches is simply descriptively and wildly incorrect. They argue that Senator Williams adjusts not only for pre-existing characteristics, but also for outcomes. This is somewhat wash solo argument, which is in looking at bar passage, they are only using graduates, that are looking at sort of students, going all the way through in the law school process. But Williams actually talks about this issue in detail, so does Arcidiacono and Logenheim in their literature review. And they…not that they are highly aware of, but they sort of introduce a very sensible test for measuring it, and they’re able to measure it directly. And they find that it doesn’t make any difference. That both ways you produce pretty much the same mismatch effect. So, I don’t want to go overtime, but the basic point here is that there’s kind of a pattern of… not just bias, but sort of outrageous falsehood. Over-the-top statements, that, I think, would not survive in ordinary academic discourse if there wasn’t sort of this very strong ideological proponent. But in the context of affirmative action, in the context of sort of racial overtones of the mismatch debate. These things are normally sort of passed over, but praised, you know, authors get lauded and rewarded for making these sorts of arguments. And we have a pattern of, you know, complete inaction by the legal academy. Not only a failure to sort of… address mismatch issues, but a complete unwillingness even to investigate, even to appoint a panel that will look into things and get the data, and systematically consider it. So, that I would submit as a strong case study for the strong, the powerful and pernicious effect of political correctness on academic research. Thank you.

OK, great. Well, I think, there’s…we can talk about …just about that, but maybe we’ll get the next ideas on the table as well.

Sure, great. So, I am glad to be here and I think this is amongst the most important sorts of things that the Federalist Society does. So, I am very glad that we’re doing this and shining the light on this topic today. I am going to... You’ve gotten the empirical facts earlier. Today I’m going to talk mostly anecdotally just to give you a little bit of flavor how this plays out. So, you’ve learnt some of the empirical facts, I’ll tell you at Georgetown our faculty is… we have 125 professors and our numbers or our ration is a 123 to 2. So, I’m one of the 2. And I think, that’s extreme, but the ration is similar at a lot of top schools. I think, that might be the most extreme, but only by a little bit. And, uh, you also heard sort of a bit what…some of the pernicious effects of this sort of imbalance on earlier panels. And if you wanna read more about the pernicious effects of that, you can take a look at Heterodox Academy, which John Haidt and I and others founded a few months ago and we’ve collected a lot of literature. You know, you may take a look at that, if you like.

But OK. So, there are a lot of pernicious effects, I think. But I’m gonna talk about really just one, which is….I think you do get a bit of an Echo Chamber effect in these schools, because there is no one to descend. And the thinking can get a little bit mushy. And. in particular, I wanna claim, that makes these great elite law schools, its great elite law faculties, actually startlingly bad at the predicting of actual American law. What’s gonna actually happen in a courtroom, or what kind of arguments are gonna to persuade an actual American judge. And so, for that I’m gonna to just offer a few examples. My first one is Rumsfeld v. FAIR”. So, in this case, you know, the military wasn’t allowing homosexuals, and schools were responding, universities were responding by not allowing military recruiters on campus. And the Congress responded back by saying, something called the Solomon Amendment, by saying: “If you don’t allow military recruiters on campus, then you don’t get any of the Federal money”. And a number of schools filed suits, and Rebreed Sabbathas and Georgetown joined as well. So, Georgetown faculty joins this fight, many top schools sawing onto this, and I’m confident, Stanford was one of them. And, uh, um, I was really new to Georgetown and really just starting out and was not ready to pick up a big fight about this. I did actually take one of organizers of this movement as I did say to her “I don’t think we should do this. I don’t think actually that we should sign on to this brief ”. And she said: “I understand completely. You must have deeply held religious objections to homosexuality. And so, that’s I understand, your position about this”. And I said: “No, actually, I don’t. In fact, I’m in favor of gays in the military as a matter of policy. What I have strenuous objections to, though, are dumb legal arguments.” And this is non-academic sense, this brief, and it’s not… it’s embarrassing for the Georgetown faculty to be signing its name to these arguments, these are legal arguments.” And first she was…she seemed really quite shocked by that, just shocked by the thought, that one’s legal announcements and the policy answer might be different. And maybe that’s the conflating of the politically correct answer with the legally correct answer. So she was… seems kind of surprised by that, you know, I think she, and really the rest of the academy, was shocked, when they lost at the Supreme Court 8:0. So these great legal minds of Stanford and Georgetown, and so forth, they convinced no one, zero, right? Not Stevens, not Ginsburg, not Brian, nobody, zero.

So, an example of startling blindness about what kind of arguments, you know, work in court. They’re kind of blinded by kind of politically correct exigency of the issue. Well, guys, this is example 1.

2. The ObamaCare case. So, one of the primary architects of the argument about…So, the argument about ObamaCare was Congress. Can Congress come and dear/gear you, require you to go do something? To get off your couch and go buy some insurance. That was new. Right? Regulating of inaction under the Commerce Clause. If you simply sat on your couch, you’d be in violation of this law. You were obliged to go do something. Could Congress do that under the Commerce Clause? That was a question. And my colleague Randy Barnett said “No”, Congress can’t do that. Congress has never done it before, unprecedented, and Randy said he couldn’t do it. And what I wanna emphasize here’s that was…that view was not…to say that my colleagues didn’t buy that would be to understate that. That view was really met with a ridicule. Basically, not just the Georgetown kind of threw out the academy. It was just not taking seriously, considered to be outside of the legal mainstream, “off the law”, like, I think, was the popular phrase. And again, I think, con… Dawn found it consternation when this view actually turns out to win 5:4 at the U.S. Supreme Court. Whether or not you think it’s right. Whether or not you think it’s right. That’s how it came out: 5:4 at the Court. And that was not the view of the academy. And again, I think their prediction and analysis of the quality of the argument [were] a bit just driven by the exigencies of the political correctness.

So, that’s my second, and my third example is a bit more personal. So. It’s about Missouri v. Holland. Missouri v. Holland in 1920, Justice Oliver Wendell Holmes held that if we’re entering to a Treaty, then Congress… and the Treaty promises that the Congress will do something. Then Congress automatically gets the right to do that thing. So, or to put the finest point to it, a Treaty can increase the legislative power of Congress. Congress didn’t have power to do something yesterday, but now he gonna to enter into this Treaty, and so now Congress does have the power to do that very same thing Justice Holmes said in 1920.

And he said it in a 5-page opinion with no reasoning at all. He just assorted that. And that was…has been the connectional wisdom since then. But he offered no argument at all. Zero. But then there was a very, um, influential argument made in support of this claim, who was made by a Blue Henkel, who was a very prominent Professor of International Law. And he wrote sort of definitive treatise on this and he said: “I’ve looked at this history, I’ve looked at the drafting history on this question and here’s what I‘ve found. The Constitution actually used to say this exact thing. And early draft said: “Congress shall have power to enforce Treaty”. Said in a, in, uh, but that was a proper clause. “Conversal power to enforce treaties”, and they cut that language as superfluous in the final draft”. And that’s about as strong as the argument from history can get, right? A. When you know what the draft said, and B. when you know why they changed it. They changed it because they thought it was superfluous, and so the implication clearly is: we should read the final draft to incorporate that idea. So, Missouri v. Holland was right. That was hugely influential when he wrote this in his treatise in the 1960s. I looked at this issue and I thought, it seems wrong to me, the conclusion seems wrong. But then, I read the Henkin’s argument, I thought, well, that is actually very compelling. I mean, it’s hard to argue against that. So I thought that must be actually right, except… I just thought, I’ll just take a quick look at the… source documents Henkin cites for that proposition. And I had a look at the actual draft in history, and it just turned out to be false. It simply was not so that the draft had ever said that. He, now I don’t think that he was lying, he misread it. I mean it was a plausible way to have misread the history… but simply did not the Consti…the Nasser- Babakhel articles was actually never said. So I, uh, wrote it up and I published that in the Harvard Law Review, Justice Scalia and Justice Thomas adopted it in a bond just couple of terms ago. But so... point of the story…Did I… Have I done some incredibly newest parcing of history that nobody else was capable of doing? Obviously, not. It was extremely easy to do what I have done. So why was I the first to do it? The reason, I think, is the Louis Henkin conclusion was very congenial to the academy. Academy likes that conclusion, maybe like the idea of Congressional Power. And they like the idea of international law. So, to them, it all seems right. They read it and it intuitively to them seems right. So, it doesn’t occur to them to check, to flip open, uh, the source documents. To me intuitively it seemed wrong, and that’s why I opened the book. And I think that, you know, that the converse, it would easily happen to a conservative, right? I could easily read something, it seems right, and I wouldn’t check, but a liberal would check to find out…Claim is not that conservatives are incapable of these errors. The claim is just, if a liberal makes an error like that, it’s likely to persist for a generation, decades, for a long time. Because there is no one around, who has the instinct to check and see “is this maybe wrong?”. I did have the instinct to check, it was wrong, but there was no one around to look until me. So, these were, I answer, examples, where the legal wisdom gets perverted acts of law. Find the monolithic ideology of the legal academy. So, and I guess these are few my little hypotheticals. And maybe I’ll just, I don’t know, maybe I’ll say one final anecdote, really just because we’re here at Stanford. I published those, I published that article on the Law Review, then I published three other pieces here, at Stanford Law Review. And I came out here and I had a great…I was invited to visit, as a Visiting Professor, I was a Visiting Professor at Stanford, I had a terrific visit here. And I really enjoyed it, I thought the place was great. I really enjoyed hanging out with everybody here, and in particular, I have to say, I loved hanging out with Pam Karlan, and I have huge amounts of respect for her greats/hang rates master here. And thought, actually, you know, this is a terrific place. But I did not actually get a job here. Not notable at all that people don’t get jobs here , and it was a God-given right to a job at Stanford, so not an interesting anecdote except…I can tell you when I did receive the phone call giving me the news. The official word on it was: “ We’ve talked it all over here and the verdict is: we do not need someone of your methodology here”. Period. Close quote. So you know, I actually give Stanford a kind of a credit for “king, king” as to this. But there is always one case we don’t have to guess, we know actually, methodology does drive these decisions…sometimes. I’ll stop there.

-OK. Great. So meet Professor Karlan, who will offer some responses, then we can have some debate.

- Sure, OK. So, I too wanna thank the Federalist Society for including me in the Panel. It’s a really interesting topic, and I apologize I wasn’t able to attend the morning session… I was teaching then. I know I’ve missed some of the discussion and I’m coming in a little late. I thought in my remarks today I would talk about political correctness in the classroom, and then political correctness with regard to research, and then turn to the issue of politic…political correctness in the relationship between the academy and the world. And I think it maps on nicely, although it’s gonna toggle between the comments of the two of you, comments about what the two of you’ve done. But I think it maps on nicely to what we’ve heard form Rick and Nick. I feel like… I should have a name of something like “Sick”, [laughter], or you know, “Click” or something. So, one of the difficulties I have a little difficulty in discussing political correctness with, is political correctness to me, as it turned, that’s come to seem a little bit like judicial activism. It is a term always used to describe the positions that the other side takes, because the other side’s judicial activism we’re principles. And we see that all the time, and the same thing, I think, is true of political correctness. It’s normally viewed as a kind of…as I understood it as a sort of set of arguments that point to what ,I think, was almost the parodic behavior of young people trying out arguments for the first time. And super odd identity politics arguments that, I think, don’t actually describe what goes [on] in most of the academy. Although there are obviously parts of the academy that are like that. So, I wanted to start by talking about what I understood from the kind of description of the Panel was going to be one of the issues, which is political correctness in the classroom. What does that mean for folks. And here, I think, there is a tremendous importance in creating open environments in the classrooms, where they can honestly discuss what they think about the cases within, in the law school. The context of… the fact that we’re at professional school and we’re training people to be lawyers, as opposed to a school of political philosophy or the like. And so, it involves the responsibility on the part of the instructor in the classroom to make it clear what the instructor thinks, but also to make it clear, that students who disagree with that will be respected and will be supported in their arguments. So that you really do have a diverse discussion of the issues. I sort of take as my… kind of a background point here and I think about this all the time when I am trying to teach, the lines from Learned Hand’s “Speech on the Spirit of Liberty”, where he says that the spirit of liberty is a spirit, which is not too sure that it is right. The spirit of liberty is the spirit, which seeks to understand the minds of other men and women. And, I think, that that is a really important thing for students to experience. And just again, anecdotally, since we all share our personal experiences here. One of the reasons why I did not teach constitutional law for the first 10 years after I started teaching, even thought I had litigated constitutional law cases and I was very interested in it, was that I had it rather poor… as my constitutional law professor… And he was a phenomenal law professor. He was smart, he was witty, he was quick on his feet , but he gave me no equipment that enabled me to feel, that my views of constitutional law had any legitimacy at all. I came out of that course, not understanding that there actually were arguments in favor of Substantive due process, that there were arguments about why Griswold against Connecticut might be correct.

And I didn’t feel until I have been teaching for a good long time, that I understood how to teach a class, in which students, who disagreed with me, would learn the tools they needed in order to make the arguments for their commitments, when they went out there in the world. So, it’s not just the case that liberals silence conservatives in the classrooms, like… But it’s equally true that conservatives can make it hard for liberals to learn how to make arguments they want to make. And in case you haven’t yet figured it out, for those of you, who don’t know it, I am the liberal on the Panel. So, we think it’s very important to create classrooms in which students listen to each other, and they are respectful of each other. And in which the instructor keeps the classroom a place where everybody feels valued and respected. That being said, there are obviously huge difficulties with this, especially when you deal with issues that are of particular salience for students outside the classroom itself. That is, you seldom see really bitter argument about the tonnage clause, if you even know what the tonnage clause is. I very seldom see very bitter arguments or students feeling very uncomfortable when we’re discussing the 11th Amendment, as opposed to, for example, when we discuss qualified immunity. Or, I don’t see much in the way of students’ being uncomfortable, when, for example, we discuss, uh, the mathematical formulas for deciding contested elections. But I do see lots of angst in the room when we discuss issues, relating to voter idea and the like. So, I think some of what instructors have to do is to avoid making their students feel that their arguments, either that their arguments are illegitimate because they’re politically correct, or because the instructor disagrees with them. But it think we have to recognize there’s disagreement.

So, let me turn now to the research point, and here the striking thing to me both about Rick Sander’s work and Nick Rosenkranz’s work is whatever you think of diversity or the lack of diversity in the academy, they have both been extraordinarily successful academic entrepreneurs, precisely because they have made arguments that are new and different. And so, you get rewarded for those kind of arguments in the academy, you don’t get punished for those kinds of arguments. Now, I can’t assess whether Rick is right, or his critics are right on the empirics. That is not something I have expertise in. Uh, that is not something I am capable of making a judgment on. What I do know is, that there is a big disagreement about this among people, who are all highly credentialed and very smart. So, the idea that there is an overwhelming consensus one way or the other, strikes me as unlikely. The difficult question, though, is not that there is, in some sense, with regard to some issue, a problem of mismatch, I think at least within the legal academy, as I understand it, everyone agrees that there are students, whose prior preparation means they should not be admitted to particular selective law schools. The real argument is often over where that line is between students, who would benefit from showing up in a particular law school becau… even though their numbers are lower than the median, or lower than the 25th percentile over the like, and those students, who would not benefit. And here it strikes me as a very difficult issue. In part, because I think ultimately, the second-order issues, which are less determinate, may be the more important ones. That is, if you remember back to Rick’s slides, he points to a slide that talks about the social…the first-order social mismatch conditions. Frankly, in the great scheme of things, I don’t really care whether the students are in the study groups, that are mostly made up of people with the same entering credentials they have or not. What I do care about is what our graduates look like out there in the world, how they deal with legal issues out there in the world, and where people are 10 or 15 years down the road. Because a law school is going to be, in some sense, a disorienting painful experience at some points for almost everyone who attends it. And that’s much less of a concern to me than where students are down the road. So, it’s very hard to know that. The second, that is, at what level do we care about them, and this one, that those of you who are libertarian or enterprenuerlistic in particular should be asking yourselves about, is…Anyone who gets to law school is smart enough to read the Rick’s article and to understand what his basic argument is. As there is nobody who’s coming to law school, who is incapable of just reading the article in the Stanford Law Review and understanding what’s basic argument is. So, presumably, the students who are the victims of mismatch are capable of reading that article and deciding they’d rather not be mismatched. They’re capable of deciding, say, “Instead of coming to Stanford , where I might be near the bottom of admitted class with respect to my GPA or my outside score, I can go to…”, you know, because I’m not going to name a school, because as/there’s admit we can, and you never know where the admits are…[laughter]… and you certainly don’t wanna… “and above all, I can go to...”, uh, let’s call it the… you know, “Not Princeton School of Law” because, as you know, Princeton always, when they do these surveys, people run Princeton Law School very highly. Well, even though it doesn’t exist. Perhaps, they rank it very highly because it doesn’t exist. So, you know, “I can go to the university of a state”… that barely exists school of law instead, and well, “will be at the top of my class”. So, it seems to me, if Rick is right, that isn’t necessarily an argument that schools should cease what they are doing, it’s an argument that students should make that decision for themselves. And you know, the fact that legacy admits seldom say to themselves “I’ll be better off going to a much worse school than my parents went to, even though I got into my parent’s school”, is a sign of a kind of revealed preference, that many people have. But my basic point with respect to the research piece of this is that, mirroring the conventional orthodoxy does not get you published in the Harvard Law Review, or the Stanford Law Review, or the like. And so the incentives in for the academy are not for you not to say what you believe. They are for you to make claims that “I have rethought the entire field”, right? The perfect title to Law review article is “Rethinking Taking Everything that Happened before Seriously. Call Land/Colen. A New Approach.” [laughter]. And that is how people get their reward in the academy. So, it is no surprise that they publish, you know… It is no surprise that all sorts of articles, that attack whatever people think of is the liberal orthodoxy, get published in highly selective law reviews. Because writing an article, and this is actually a more general point in the academy, that, I think, is deeply problematic, because trying to replicate other people’s research , or an article says :”Louis Henkin was Right” and nobody said about it since he wrote it. That article would not be published anywhere, right? And so, the reward structure is entirely about challenging whatever the orthodoxy is. And to the extent that we’ve had a long period of a kind of consensus liberal view in a law, you should expect lots of rewards for the conservatives who’d attack it.

Now let me turn to the last point, which is about the relationship between the law schools and the world and the two examples that Nick gives. The Rumsfeld against FAIR case and the affordable peer up case.

Rumsfeld against FAIR. Nick claims that the problem here is that law professors are bad predictors of what the Supreme Court will do because of their overwhelmingly liberal orthodoxy. I think there actually are two other issues going on in a case like Rumsfeld against FAIR. Merely, which involves that … The first issue is that many of the people, who teach in law schools today are, quite frankly, not good lawyers. They weren’t hired because they were good lawyers or litigators, they were hired because, for example, they were great at ancient law. So, they ‘re right, you know, “I teach the history of Greek law”, and that’s why they were hired. Well, they are legal historians and not particularly great at doctrinal analysis. Or they were hired because they do really interesting kinds of empirical scholarship, but not because they are really good at reading cases. So, there is a whole group of professors, I would not hire to represent me in anything, right? I mean, if I were in trouble, I would call a real lawyer to represent me. I would not call a lawyer, who practiced for a year somewhere and then went into the academy, based on his or her PhD in a cut midfield. The second thing, though, that was going on in Rumsfeld against FAIR, and I was not surprised, that the side that I would have liked to see win these studies, the right of law schools to keep their non-discrimination policies and apply them to do it. I was not…I was not surprised at all that the law schools lost that lawsuit. You know, why I was not surprised about that? In part, I was not surprised about it, because we were in opposed 19/11 world, opposed 19/11 world, in which military recruiting is important. [00:47:44- 00:47:51 – muted] …is just raising an army, and they could come on to your campus and raise, kind of, they could have ordered this, regardless of giving you funding or not. But the real reason why the law schools felt the need to litigate this point, and this is an important point of view to understand, if you’re going to go after and be lawyers, that sometimes you have to litigate even if you think you’re going to lose. And the reason why to litigate even if you think you’re going to lose is that there’s something important you’re signaling either to the world or to your client. And the law schools were signaling to their lesbian and gay, and bisexual students that they valued them and they took seriously their non-discrimination policies. And even if they were going to go to this courtroom and to lose the litigation, that was something important to do. So it was not that everybody, you know, dropped to the floor in shock when the case was decided the way it was. But it was an important case to litigate anyway.

The Affordable Care Act issue. This is a sign, and I should say, the Affordable Care Act issue, the last Federalist Society event, national styles Federalist Society, well, as opposed to the local, Stanford only thing that appeared, that was the Student Convention. It was about 4 or 5 years ago. And I debated Randy Barnett on the Affordable Care Act. Now… Again, here I am not surprised the Supreme Court did what it did. Because the Supreme Court is a very political institution. And I was not surprised they divided 5-4. The question is not, you know: were people shocked about this? I think the question is instead: how do you read Prior Supreme Court opinions or the like? And, uh, the Supreme Court had until the Affordable Care Act really not enforced the limitations on the commerce clause very much. They’ve had a little. Hiccup in the mid-1990s in the Morrison case. But then they’re gone back to essentially seeming to allow all sorts of tiny jurisdictional books and the like. And therefore, it was not a super, uh, you know… If you’d ask most lower courts about, there’s an idea, the most lower courts would not have decided the case the way the Supreme Court does. Because the Supreme Court is a different kind of institution. It’s a part of what I think it’s important as law professors to do is to teach our students that the Supreme Court, unlike lower federal courts, is…”It’s good to be a king”, right? I mean they can decide the cases the way they think the law ought to be, as opposed to trying to figure out where doctrinally the law is before they act. So, I’m not surprised the Supreme Court decided the case the way it did. I would be equally not surprised if, had they heard the foundations version of this plan gone into effect. And in 1993, it was the conservatives who had this view, how to solve the health and insurance crisis, rather than the liberals, this court would have appalled, the individual mandate on commerce clause grounds. So, understanding that the Supreme Court is political means understanding also that it’s not a liberal or a conservative orthodoxy that is an issue there, uh, and I think, I’ll stop there.

-OK. Great! Well done!

- Well, that is great. I want to give both Rick and Nick a chance to respond, and I think maybe one place to start with Rick drawing up what Pam said. We could be suggestive of your experiences, this actually suggests that political correctness isn’t such a big issue. When you…you’ve… In other words, the university is working, it’s performing its function of providing a platform for people to challenge orthodoxies, to present critical arguments, who’s been able to advance a thesis that does challenge orthodoxious conventional wisdoms and, not surprisingly, you get a strong reaction. And also, not surprisingly, give it the way of the world, even if your view…uh, what may be the best view of the empirical facts does not necessarily shape ultimate public policy. This is hard to be the only area where other considerations end up prevailing in terms of public policy. So, what’s the concern in terms of political correctness in the way debate is being limited on this issue?

- OK. Great. And thank you, Pam. Very good comments. First of all, I just want to make it clear enough, nothing is wrong with the Panel. Pretty much as I do accept the mismatches is the orthodox liberalism. And I was very early Obama supporter, I was a community organizer in Chicago before Obama got there.

- Were you bored in Kenia? [laughter].

- I could go on and on. No, I wasn’t. I wasn’t. But I survived Indiana, which was almost as impressive. Uh, so, uh, you know, I, I, I, I don’t have complaints about my career, but if you look empirically, how the law school mismatch then evolved, it wasn’t, uh, there wasn’t a reward system. The first thing that happened after my article appeared was that I was asked to resign from effort of JD study that… conducted by the American Barring Foundation. I was pretty much the informal leader of that study at that point, so that was not a trivial decision for them. But they felt that it would be impossible for them to get the funding from the mainstream legal academic institutions, like LACC and now, someone who had written an article I wrote, continued to be a member of that Panel…and they were, they have been very careful to screen out any possible duplication of politically incorrect research. If you look at the other research that has come out after the JD, it’s all…every single conclusion that’s appeared is incredibly predictable. So, it could have been a big blow to someone if they were kind of that matters … You know, for the other people, it would have been quite upsetting, it wasn’t, it wasn’t really to me, I was, I was doing other stuff. Uh, let’s look at the number of top 20 law schools that had faculty colloquia about this paper. Certainly, it was the most discussed paper of 2005. I think, you would agree. So, usually, papers, that are even fairly obscure, but, you know, achieve an intellectual prominence, lead to colloquia all over the country. There were zero top 20 law schools, that had a faculty colloquium about my paper.

- What do you mean by faculty colloq…I’m trying to figure out, because …

- Faculty colloquium?

- Yeah, we never have had in the entire 18 years I’ve been here a faculty colloquium on a paper that’s already been published.

- Well, it was in free publication. It was widely circulated for a year before it came out. There was nothing to redact in it either. And also people knew about this. I mean it was very widely known…

- I don’t have we’ve ever had…I don’t know how other schools operate, but usually here, well, when we invite somebody give a paper at one… We’ve no idea what paper they’re gonna give before they send in a paper. We don’t generally look for papers at and then invite them to give the papers. On the theory, that if the paper’s being published, we can read it just fine.

- Uh, I don’t think that’s really the purpose of the faculty colloquium. The paper was, was widely known about by March of 2004, and it didn’t appear until January 2005, and not a single top 20 faculty had a colloquium on it. Uh, I was strongly urged by a number of colleagues at UCLA elsewhere, that having made the point I made in the systemic analysis would be bad hurtful for my career to continue to push this point. And if, in fact, I cannot continue to push it, then the whole law school mismatch thing, which we now consider sort of, you know, you’re right, it has become an issue that clings. That’s only because I continue to push it. No one else was arguing that it should be continued to be pushed. And you know, immediately after it appeared, there was a measurable change in the law school admissions practices. But when the counterattack came out, and you know, sort of the deans consolidated behind the end-side of this mismatch position. All that disappeared. As I said, there was no attempt to create any kind of legal education commission to deal with this issue. There’s been fierce resistance and a complete clamp down of any data release on the issue of bar passage. You talk about the… you know, let’s let people decide whether it makes sense to go to school A or to school B. But there’s no data with which they can decide. They can sort of see Sander’s argument, and they can see lots of other gone peer-reviewed articles and say it’s wrong.

- They can’t.

- But there is no data you can find. The dat…what we need is the ability of people to say, like I did in that chart, if with my LSA if I go to UCLA, I…people of my group will have a 31 per cent chance of passing. But if I go to school B, I have a 79 per cent chance of passing. That gives people actually a meaningful chance of violating this issue.

- But they know, for example, whether they are within the 25 to 75 range, right?

- Yeah.

- So, the interesting question is, I mean if you… how…at what point would you give somebody advice that they shouldn’t go to the UCLA, they should go to, uh, you know… I don’t know…like Capman instead. At what point would you tell somebody: “That’s a better bet for you.”?

- Well, you know, I already wrote an article, sort of looking at schools in terms of… in terms of appointment opportunities. And found that it is much, much more than we would even think of. The debate again tends to be deleted by …dominated by elite schools, who think that nearly this is everything. But, in fact, people who go to master schools and perform well, have pretty great careers and have higher chances of achieving certain things like law schools, like law firm partnerships. But the point is, there has been an organized effort, a very systematic and organized effort to suppress any possibility of the information being released. Which would make the transparency, the kind of comparisons we’re talking about, possible. We have, I mean we all know…my research occurs because of something called “The Bar Passing Study”, which was commissioned in the 1990s. Its purpose was to figure out: “why are white bar passage rates?”. So, well…it, it, you know, the data unambiguously showed that part, if that was to, was simply to, to different levels of, of academic credentials going in. But the only possible explanation, the only explanation, which really has been advanced at all, for the rest of the gap, which is a large gap, is mismatch. Now, we were very concerned about trying to study this issue in 1990s, but all of the specialists in this issue ended after my article appeared. Because most people actually knew that that was the answer. It’s proven to be overwhelmingly supported by evidence, but they couldn’t go down that path, because of political correctness.

- Again, I’m, I’m in a disadvantage here in having this discussion, because you’re an empiricist, you did empirical work…

- Right.

- There are empiricists on the other side who say: “I disagree” and I have no way…

- And who refuse to talk to me…

- Well, but I have no way…First of all, I don’t; know whether they refused to talk to you or not…

- We might investigate it…


- What would then allow to block the data? The problem of the story, [,,,] cause I don’t understand, half of what you say is correct. Anybody would be enclosed to getting to data…

- Well, again, I don’t understand in what form the data now are. There was su…the, the last, you know, in the press, discussing this, I understood, was in part, you can’t perturb some of the data enough with some of the schools that have really small numbers of people, so that won’t be clear exactly, who you’re talking about.

- Well, Pam, you know…

- Excuse me, excuse me…

- Again I am not…

- I’m just saying from the scientific position, but those arguments are really ridiculous. I mean, I don’t know…

- I don’t know whether they are true or false…

- Well, I can show you the 75-page expert report we prepared, and you can read it. Have you actually […] an issue?

- … who actually is a specialist in your field, not with somebody who is a doctrinalist… I mean I can discuss legal doctrine with you and I’ll feel perfectly comfortable discussing legal doctrine, I don’t feel comfortable as a representative of a position on something I’m not an expert on…

- And my point is those representatives are unwilling to engage in the issue.

- I don’t know whether that… I can’t have even that discussion with you, because I don’t…

- OK. Then fine. Let’s consider it unrebetted/unrebated plane by me…

- But he’s not on the Panel…

-Let’s bring it again and maybe, so, maybe one problem with this issue, I think Pam has kind of understated… Courts are having hard time evaluating for the same reasons that non-empirical professors do about, you know, who is correct on the policy issue like this. But that sort of issue you’re talking about from Rumsfeld versus FAIR, for example, that isn’t that ultimate court decision a kind of constrained how skewed professors can be. So, the concern is that academy… the presentation to students getting sort of skewed in some fashion. Why isn’t the fact that at the end of the day if you go after and read the Rumsfeld v. FAIR decision that constrained on how far you’re out of line, academy can get in this field, and maybe that to draw off-the-order discussion, maybe that’s the difference between law and some other disciplines.

- Yeah, I think it’s fantastic that, at the end of the day, the students get to read Rumsfeld v. FAIR opinion… But it would have been nice, maybe, for the students before that to have gotten some signal from some of their professors, that some of the arguments on the other side were, you know, maybe, more plausible, more likely to win in court. So, as I say, I quite agree there are reasons to litigate and argue other than trying to win, and it’s perfectly plausible to file such a brief, knowing that the odds are slim. I wasn’t hearing that, though, just at least at Georgetown, and they, they conveyed to me the sense of why this is the winner of an argument. And they did convey to me surprise at losing 8-0.

- Then, then they are not good lawyers. [laughter].

- So, uh, but you know what, what they ought to be able to do is to separate these things out. Mov.. it perfectly fine for a law professor to say that “Look, I think that, you know, the Supreme Court is crazy and wrong about this. But, so, there’s my view of what the Constitution opt to say as to this. But let me also explain to you that I’m on, on the tiny fringe of the continuum, and the continuum, as represented by the U.S. Supreme Court. Eight of them are going to disagree with this. ”. So, if this was the presentation you were getting, “this is my slice, but this is, actually, the slice out in the world”, I think that would be OK, and the students could actually understand this. But I’d say it often is not presented quite that way. I mean, I think they have presented it as though it is the law or likely to become a law, or whatever… When in fact, really, it’s such a firm slice that they can’t get just to steeve them. So, anyway…

- Well, let me, before I opened it up, join in that and come back to the classroom piece, as I think this is important. It seems to me, I mean, that political correctness, as Pam is suggesting, is normally a pejorative term. The idea is that, you know, some ideas are not being tolerated, not for good reasons but because, because of some political orthodoxy, but I think if you strip that away, what I see is, the real issue is that on one hand. There’s a kind of conflicting values, the university, on the one hand your, your…university’s capability and intellectual rigor, law school presenting competing positions, challenging students to question their beliefs. On the other hand, you’re a part of a diverse community and you want to create an, an environmentive tolerance and respect, where that sort of debate can take place. So, I’d love to hear, I mean, in teaching in the classroom. For example, how do you strike the right balance between challenging students’ preconceptions? But also, the least way I was thinking about this is certain debates, particularly in a class like constitutional law, have a kind of personal impact on some students, they don’t have on others. And so, what’s the right way to negotiate that sort of boundary? And I love you for all of you

- Well, very grateful, I mean …I think it’s a big issue at UCLA I continually …probably because it may telephone with this mismatch issue. We’re continually getting reports from students about not feeling comfortable, raising issues. Usually, there are the center issues. There’s you know, there are problems of micro aggressions, that minorities need space. But there are problems of micro aggressions, that are a part of everyday life, you know, of conservative experience at UCLA. Uh, there is…and the school makes no effort to socialize students’ idea that learning can be uncomfortable. They do exactly the opposite. And, actually, in the last three years, UCLA has started a variety of programs, all aimed to train to its faculty and students, that we need to make the learning environment as comfortable as possible. And then, we need as a pre-sensor, all sort of, all sorts of ideas, of topics and ways of expressing things, to try to make sure that we’re not making environment uncomfortable. So, the first thing we can include is to stop that, and getup the obstinate message, which is that a good legal education should make you feel uncomfortable frequently. And there are all sorts of things that people are gonna encounter in the real world. And they ought to encounter them in the law school.

- Uh, you know, actually I haven’t seen a lot of this first-hand, so, uh, I followed that quite closely, and I see more of it in my work of the Board of Directors of Fire. But in….uh, I came to structural constitutional law and, honestly, it doesn’t come up so much. I mean, I think, we’re not doing, we’re not doing the most politically sensitive issues on that…Of course, it’s just as you say, people are not so worked up about the 11th Amendment or whatever.

So, I don’t see it that much in my class, but it certainly does seem, uh, that at least from, uh, form the work of Fire, that there is a sort of new campus climate, where more and more things cannot be said.

Uh, I was said as a… there’s just a…that… naïve way for the new professor, but I’ve always… I mean, I teach constitutional law and I’m just trying to say explicitly, you know, that we’re dealing with the sensitive topics, that people have different beliefs about, and you know, my goal here is to equip you to best advocate your own beliefs. And I find that students generally understand that, and I wonder how much the climate of fear is really there, how much, how much this comes to/from the students, at least to the extent it’s there.

You know, I try to do exactly the same thing, which is within first five minutes of every course I teach I say, you now, it will be clear to you on a lot of these issues, what I think, but I welcome hearing other points of view and I respect you, you know, because my job is not to turn you into “mini-me”. I mean, you know, there’s nothing I like more than the students I had, who were doing exactly the same kind of work I did before I went into the academy, and I love seeing them. But I also love seeing the other ones. The ones who are out there, defending the indefensible and prosecuting the clearly innocent. You know [laughter in the audience] …They are instead…But I mean, once you take a different point of view than I do, I am as happy, you know, I am as happy with them as I am with the ones who agree with me on everything. Because I do my job as an educator to help students…I mean that the word “education” is like leading the things out of people, that are already there. So, I’m not trying to make people agree with my constitutional law or my political commitments. But I do think there are, you know, there are some people who I just do not understand. I think they exacerbate the problem by suggesting there’s a bigger problem than there is. So, they suggest, you know, we can’t talk about this issue in the class, because it’s so fraught. And every time I hear the word “fraught” I worry, because it seems like one of those very jargoning words. You know, this issue is very fraught…I was taught “fraught” would have to take prepositional phrase afterwards ; if there’s no prepositional phrase afterwards, it’s a very bad sign. And so, I try to think there are no legal issues that are relevant to the course that can’t be discussed in the room, and the more you make sure that the students feel that their views are respected, and that you’re trying to teach them rather than trying to force them to agree with you, the less likely you are, you’re to have these problems. But you have to model for the students the idea you can talk about these issues with people you disagree with, uh, of respectful but forceful way. But I do agree, that you’re trying to teach them in the classroom something, that has to deal with the outside world, rather than making them feel, that, you know, they can’t discuss really important legal issues.

Right, the way we opened it up…Are there any questions in the audience now?

Right, sure.

Other questions?


My question is addressed to Rick, and actually, before seriously commenting on that, at first I wanna say thank you for being on this Panel and conference, we’re using, though, and have us all here as a member of the same Federalist Society, just the reason we invited you all to this Panel…

Because I’m such a Loser! [laughter in the audience]. Bringing…bringing the backseat…

And you know, makes taking out a good liberal vision and it’s very, very much appreciated.


Ah, thanks.

…years ago and making for that now. And my question is sided/sightly to litigate that comment, which says: “Do you think most liberal law professors are as exceptional as you, to be optimistic? [laughter]. Because I cut…I regret not taking the courses here at Stanford and I can’t remember why it hadn’t worked out…You know, I took Federal Courts last year, and very little/few professors on my favorite class, but I can’t say she took the conservative perspective seriously…[…] to push these cases a little bit. Just as Thomas got it, to set an IQ […] right, I don’t know if I still think that today, but at that time I did, and then you can remember passing college debates but…oh, the liberals just as Thompson/Thomas could do, chuko-chukomoved on . No comment! And I raised my hand. Well, actually, I think this is right, can we discuss this? And she kind of takes the step back and says: yeah, well, I guess you could talk about it. So my important evidence being, a lot of liberal law professors being… I think you are in a very special class and category for me, you are. And so, my question is if that’s true, if you agree with that. Do you think there is something that liberal professors who take the bright approach in, in how they teach common law in terms of making students think about law, and trying to impose certain viewpoints. And whether there is something, professors like you can do to encourage that kind of practice among…If you agree with the practice, if you don’t […] 

So, one of the weirdest things about being a law professor is the thing that we do, that is most private, that is sitting in our offices and writing articles. There’s lots of public discussions with our colleagues about. The thing we do, that’s most public, which is teaching students…I have very little idea what goes on in other people’s classrooms… I, I just came back, as you know, from spending a couple of months teaching Stanford undergraduates in Italy, an so I was class-roomed for the first time as a student , I was taking Italian, and I was taking the history of art. And seeing other people teach after so many years of teaching is a real revelation. So, I don’t know what goes on in other people’s classrooms. I tend to think that lots of people are not very interested to hear what students have to say, and have a particular view of the law. I am not sure that’s correlated in any way with what their ideology is. That is, there are probably people across the spectrum, who are very opened to the discussion, and people who are very closed. I wish law schools spent more time as faculties, talking about pedagogy and teaching, because I think it would actually be useful, you find out all of these techniques and things when you talk to other people, if you, if you get the chance to talk to them, that you can then bring into our classroom, that work really well. You know, I, I agree with you, that there can be that problem. And just, uh, anecdotally… uh, one of the…fav… the classes I taught, that I enjoyed most, was a couple of, this now, maybe a dozen years ago…I was teach… back in the University of Virginia, teaching…I was teaching the voting right class, and Justice Thomson came down for a three days to visit, and he said would you let him a common teacher class. And I said “sure”. And he said he was willing to talk about anything. You know, and so, I thought, maybe we should talk about the RV. You know, he drives out on the country on RV and in summers, but instead I said: “What would you have done if you had been in the Supreme Court of 1962, when they decided Baker against Carr in 1964, when they came out with one person one vote. And it was a great opportunity to discuss these issues in the class. And he was, you know, he was very widely about it, and at the end of it he said something that comes very closely to a little bit of what he did in […] well. This past, this past week, which was, he said, you know: “I am all for the idea of one person one vote, but I just don’t see it anywhere in the Constitution.” And so, that was a great opportunity for the students to see, you know, disagreements. And at the end I said something about the voting right take. And he said: “Well, you know, I cited you in my concurrence”. And I said: “yeah, you cited me as an example of “if we don’t cut back on the voting right take, look at the crazy stuff people will do”. [laughter in the audience]. And he said: “But I said it with respect”. So, I think, you know, modelling that kind of, you know, these are difficult issues and we’ll write about them, and we’ll talk about them, and [to] debate them is an important thing to do. So, I’m, I’m sorry to hear that you haven’t had that experience on other classes. But, boy, I never get to see other people teaching, unless I’m co-teaching with them.

I just want to add that… you quoted…you, you say that there probably is this pathology in the world, some professors who, you know, behave in this way. And you don’t think it’s necessarily correlated with politics, and I agree with you about that, but you have to, have to couple that with the numbers. So, it’s a pathology that isn’t correlating with politics, but because 90-ex per cent of faculty is liberal it’s a plausible…

90 percent of the pathologicals are liberal too. Yeah, yeah, no question, no question. [laughter in the audience].

Yeah, go ahead.

You know, I’d like to, uh, echo the last comments about open-mindedness, and I haven’t planned to ask another question, but the exchange with Rick, uh, really , uh, uh, thought , I thought I should comment. Students, and I am talking about my students at Northwestern, they have no idea of the extent of the preference, they are not making an eligible choice in this. And they have no idea…I’ve done bar passages studies for two law schools, one about 75th, and one about 150th on the hierarchy. And the students have no idea how incompetent the admissions groups are at the law schools, and how much they’re driven by a wishful thinking. At one of the law schools, they have never…they were admitting students with an LSAT that no one at that school had ever passed the bar, EVER! Because I have data when that’s team, when they going to the 48th point. No one have ever passed the bar for/from that. Now, if you told the student, you might, if you graduate, be able to take the bar, but your odds are passing, you know, uh, close…pretty, pretty low. I actually recommended to both schools that they tell people who are at the bottom quarter of admittees:” Your chance of passing the bar is whatever, 17 percent, 20 per cent or whatever you computed it to be.” And that they also make it available to the admissions people, because you’re allowed multiple equations. So, the people admitting, can actually say “oh”, you know, this person actually has this. And I think, that’s how it looks, you can actually take as many minorities as you want, but at least pick those who would have some chance of passing the bar. I was furious getting data…you mentioned faculty colloquium, when I was doing Arming America, I was invited to at least dozen of faculty colloquia in the year that it was draft. Harvard, Yale, Columbia, Berkeley, UCLA…

I don’t think…

We don’t have

Yeah, you may not…

You know, we just don’t have this institution…

I’m trying to remember, I certainly don’t remember coming… But I know most of major law schools had me through to talk about it, and it wasn’t, you know, that it involved gun, so it wasn’t that they were that hostile, but I think this is an issue in which, if you view as such, they are much more, much more concerned about. As far as getting data, in 1990s they did a study, they collected data from 170 some law schools, and they said they’d give us the data afterwards. And I said: “Great!”, you know, I can finally find out, where is the critical mass, what works, as to schools to reach a lot. Reach, reach and get people with different credentials. Does that work as the end-point?. They released the data in purposefully unusable form, in which you couldn’t do anything with it. And they said it was because of, because of confidentiality. Privacy. I said: “Look, I’ll get a dedicated computer, I’ll work only in your office, you could look at every output I take, I will take nothing. Your privacy isn’t concerned. You have zero concern. Because I will never have access to the data outside your offices, never take a key drive out. Nothing. Stealing of data. Finally with that data they destroyed the data, and I checked, I talked to the people who’d run it. They destroyed the data because they were concerned, that someone might at some point figure out what was going on with it. And they would be leasing just grouped by LSATs if they needed group, people of 38, schools of 38 LSATs, 39, and if there weren’t enough schools, to combine a few. And just the LS, they’ve released data to Tracy George and Albert Yung, they won’t release it to anyone else. They’ve refused.

Again the same issues of…well, go to a private place, dedicated computer… No privacy concerns… Privacy concerns are pretext. They are absolutely dishonest, as Rick said. And you should not take any of those concerns seriously. If they have privacy concerns, they can all be worked out. They don’t want to work them out. They are not interested in people analyzing that data.

What I ought to say, you know we routinely release databases on, for example, health outcomes. Melanoma evidence, criminal records, uh, HIV, you know, huge amount of epidemiological research requires release of the U.S. Archive datasets. And we, you know, we have agencies, engaged in the process of figuring out how do we balance risk of disclosure against the utility of data. But then you know, this operates all sorts of grounds, that the issues of the bar data are so trivial comparing to the issues that we routinely solve in far more sensitive areas, that it really does undermine the claim. Moreover, our initial proposal to the bar was that they not release any data, we just wanted to study the issue. And that was a specific thing that was written down in our initial proposal.

Well, couple of things on the mismatch issue, because we looked at it also at the department with graduates. And I asked that because, at most schools coming in the first two years, a large proportion of the freshmen are fan to become Medical Doctors. And if you look whether at Stanford or Cal. State, East State or whatever, and you normalize this at work for every day. SAT scores, high schools and all that kind of things, which you find out. Large part of them want to become medical doctors. The first and second year they based on history/chemistry, and then they wind up much, much smaller number, larger than people who […]. It’s the bottom line that, look, really is the value or the ability of some of these experts to do pretty good things. And looked at, from the other end, at the law schools where they have been I wonder if what happened, I mean decided bar passage rate, just sort of successful law school… It lose happening that the law schools basically are saying at that matter of the bar, and so on so forth, that the ideal person we’re looking for, is a person who is a, sort of, mainstream, uh, perfect as where education, and that person is going to do well in law school and the very school, law school and so on and so forth. And then maybe the data is, is, says…whether should be… uh… to test that assumption, and see if there were, were, sort of, they were sort of more looking for homogeneity, as a result, those people who don’t fall into the homogeneous spectrum sort of… And none of it had gone to McGil but he sort of said the same thing about this is very important, it’s a sort of... Do you have to go to Harvard or Yale to become a Supreme Court Justice? Again, it is a sort of homogenous thing, uh, you know, and the antique they are responsible for out there, with other experiences who would convince some of the justices. And sides you’re looking from, supposedly you’re there. You know, we’re looking for homogeneity, empiric work, we don’t get it, and those who washed them out because they don’t fit into homogeneity, and then on given data, I’d say, would be a... What are the valued predictors for all those people with the same stats... [And so many of those people will become photographers with this organic atmosphere of the broader Suns/sights.?!]

Well, that’s one. I wanna give the other people chance to ask questions, but briefly…the... I don’t think schools, I don’t think admissions commissions generally are looking for homogeneity. I think they’re looking for heterogeneity. They get watched all the way to diversity and soons/sums with a wide range of backgrounds and preparation to get admitted, As Jim says , a lot of the problem of the admissions folks are not connected to the outcome research. So, they don’t, they don’t even think critically about what they’re doing. And there is no transparency so that people can critically compare different admissions offers they have. One notable editor, uh, uh, there’s a program in Southern California, specifically aimed at and funded by foundations, that try, try to help black and Hispanic students become scientists. And the executive clerk for that program read my book after it came out, and it occurred to him that all the… during the 10 years he had been running the program, he had been always viewing this as a trial if students come admitted to a very elite school. [the morally debated] So he went back and he started tracking down all the career histories of the online program, and he found that out of 102 people who have been on the program, none had entered the Doctor/al program in sciences. One had medical school. And when he looked through it, he saw they WERE having successful careers in some science-relative field. It was very closely connected with the degree in which they had avoided mismatch. So, he has changed his program. But this is an example of how folks really don’t know this, unless they kind of make a special effort to inquire, and unless they have access to data. So let’s look at it.

Yeah. Coming.

Yeah, Professor Rosenkranz, I was interested in your comment about the connection between law school hiring and methodologies that professors use. Serro Lawsky’s, I am sure you know his dats/debts at least entry level hiring for a number of years. And what we know is to at least the entry level, it’s very difficult to get hired if you do, for example, qualitative work, particularly, in ethnography. If you have a PhD in econ, you’re vastly more likely to get hired than when you have a PhD in sociology, and of course, it sort of maps on the politics and sort of not. Sort of maps onto methodology, and sort of not. I guess my question is, what responsibilities we have in the academy, specifically, the legal academy, to ensure certain kinds of methodological diversity and the implications you think it has. And I guess Professor Karlan and I would be curious of your thoughts on this as well.

I think it’s a… great question. I think it’s a great question. Very important question. Very difficult question. I think it’s related to Larry Kramer’s comments on the last panel. He makes an important point, that’s actually difficult to disaggregate, our criteria of quality from our views about methodology and a kind of “though-right” answers. You know, he’s... If this were physics, it would be easy to say: “Look, choose the best physicist, you shouldn’t care about race, you shouldn’t care about gender, you shouldn’t care about politics, you know, the person who’s doing the best work.” It’s actually hard to say to a law professor: “Find us the other best, you know, best legal academic, setting aside your view of the right way to think about the law”. And actually, it’s a kind of hard question to an… You know, uh, that’s… So, you know, there’s a sense, in which it is a discrimination, but you know, there’s a sense, in which this does blur into people’s legitimate bona-fide assessment of quality. And they are tough actually to disaggregate. So, I think, it’s actually a difficult problem. And my colleague, Mike Seidman, puts the point rather provocatively. He says: “Look, nobody explains that the astronomy department at Georgetown does not have the astrologers. We don’t do that there, that there… that they’re wrong. And we should have zero…” And that’s... and that’s the way he feels about originalicists. Like he thinks, that’s the same. And moreover, you know, they say to him: “But set that aside and find whoever you think would be the best originalicist”. He says: “It’s a nonsensical question. I guess we are to find the best astrologer. They’re all…none of it makes any sense”. That’s literally his view about originalism. I don’t know quite how to answer about it. I don’t know what to say about it. But that’s…I don’t know how common that view is…

We’re looking for best in breed, not best in show. [laughter]. So, I think, in part, because I’m very old-school on what law schools are relative to… I mean, I feel more and more old-school relative to where law schools are going. And a lot of law schools are now trying to become mini-universities or little Noah’s Arc’s, you know, we have two of this and two of that. The thing about economics is, I don’t remember what conference I was at, where, I think, it was Roger Noah, who was speaking, and he talked about a kind of imperialism of the economics across a wide range of different areas. So political science has now become a sort of mini-economics, and there are parts of sociology, you know, that are mini-economics. And the thing about the mini-economist is… it’s almost like mabwins/mebwings/mabalans. They can generate endless numbers of papers. And to the extent that the faculty becomes risk-averse at the entry level about what people are gonna write, you know, that somebody, who has this very, what I think of is, not necessarily very interesting… Methodology will generate huge numbers of papers, and they’re not going to go down a lot of rabbit holes. Whereas, if you had started your work on Louis Henkin’s paper that you say he got to where you are, and you have discovered it after spending three years of going through all the primary sources, and Louis Henkin was right, and you were not a tenured faculty member. Your school would be very depressed, right? Whereas, if you’re one of the people who does “let’s-explain-the-efficiency-of-this” or “-the-efficiency-of-that”. You know, the person’s gonna generate a lot of work, and I think, that may be more of what’s driving this than anything about, anything conscious about the methodologies. These people have a lot of papers, and you know they’re gonna produce a lot more of the same. So, it’s kind of OK now. Five or six years in is gonna be kind of OK then. But that may… I think that advent is a kind of fundamental small sea conservativism of the legal academy, that you’re trying to hire safely at the entry level market a lot of the time. And so, if you’ve seen people do this kind of work in the past, you’re gonna be happy to hire another person, who does this kind of work, because you know it turns into something. This is gonna be tenurable at the back end. You know, this is why they generally say in law schools: “Don’t be writing a book as an untenured faculty member, because if you spend 3 or 4, or 5 years on something and it does not turn out to really paying out, you’re in a lot of trouble.”

If you wanted to see the strategy on James Phillips data, you’d hire a conservative, who ‘d publish this at a rate of one article per year more than a liberal, apparently.

I was looking for this, but it sounds… [laughter].

Well, I’d love to hear more from our panelists, but I’m afraid we’re out of time. So, why don’t you all join me thanking them for the… [audience applauding].

4:45 p.m. - 5:00 p.m.
Closing Remarks

Stanford Intellectual Diversity Conference

Stanford Law School
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