That intellectual diversity plan really misunderstands the sense in which we need intellectual diversity. Infinite intellectual diversity is impossible, but it is important that the public can trust that the expert class includes enough people who share their *values* that they can trust that expert claims aren't constructed to disfavor their values [1].
We need a legal academy where republican representatives and other people on the right can feel confident isn't on the side against Trump so they can trust pronouncements about how unpresidented and illegal his actions are. Even if successful that plan won't result in professors the average MAGA voter -- or even maga legislator -- will trust to share their **values** and therefore make the best arguments for the same things they would care about.
That plan gets you people like Baude on the faculty. And while he is great and his legal scholarship no doubt challenges his colleagues he is culturally and in terms of values a member of the cosmopolitan urban elite.
This makes the problem really hard. That's why I think the best answer isn't to (first) guarantee that we have diverse faculty but instead ensure that people can trust that the arguments for what they want would be made if they could. In other words, we need to make it easier to argue for views which most faculty feel have harmful political consequences.
That's why I favor a kind of academic hypocratic oath that includes clauses requiring you speak up on issues related to your expertise even when you don't like the political valence. I'm not naive enough to think it will compell the strong partisans but it will give permission to the people who just want to correct people. For instance, it creates cover to explain why you might poke holes in the legal argument in Roe other than because you oppose abortion.
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1: For instance, in science, it isn't really enough to know that, say, climate scientists are all telling the truth and doing careful science if you are on the right because you know they aren't motivated to show that climate change might be a net benefit. All changes have positives and negatives so unless you are an expert in the area you have no idea whether you'd expect this many predicted harms even if climate change was net good.
The U.S. Constitution is the first written constitution of a modern nation, while case law is a legal tradition originating in England. Marbury v. Madison set a precedent for judicial intervention in the executive branch, breaking through the limitations of judicial power and demonstrating judicial dynamism. If case law were merely the exclusive power of the Supreme Court and its appellate justices, that would be one thing. However, lower court judges are now creating their own case law, including disregarding federal procedural rules and the United States Code, and abusing precedents. Therefore, the U.S. judiciary is currently in a state of lawlessness.According to the principle of constitutional supremacy, the Constitution binds all federal laws, state constitutions, and state laws. The constitutional status of lower court judges and Supreme Court justices is different; restoring the rule of law requires first limiting the power of lower court judges.
(noting up top that I recognize the "thing to read" was specifically about the ***legal*** academy) I've never quite understood the argument that "intellectual diversity" on college campuses means a need for "more conservatives"? (Except for the cynical analysis that most people arguing for more conservatives on college campuses just want more political power and it's not actually about intellectual diversity)
First I just don't understand how "liberal vs conservative" is a good way to judge intellectual diversity. Secondly, I thought most comparative political scientists put the US on the right end of the spectrum (e.g. US democrats would be a center-right party in much of western/central Europe). US academic faculty largely self-identifying as "liberal" doesn't really indicate that they are farther left than the "conservatives" of many of our contemporaries.
More broadly, I just don't understand how "liberal and conservative" maps on to most subjects outside law, economics, and political science in a meaningful way? Is there some evidence that a "liberal" mathematics professor is worse at criticizing and challenging the ideas of their colleagues compared to a "conservative" mathematics professor?
“[S]tudents need provocateurs to help them engage with unfamiliar ideas.” But what about the classroom student provocateurs? Has Prof. Fitzpatrick thought about what his proposal would mean for us, err, them?
I graduated from the University of Texas School of Law in 1979. Con Law was part of the 1L curriculum. As I recall, Charles Alan Wright and Lino Graglia were teaching Con Law the semester I took the course. Unfortunately, or so I thought at the time, I was assigned to Professor Graglia’s class. Folks might not recall that in 1976 Graglia had recently authored his book Disaster By Decree, a scathing critique of the court decisions mandating racial integration by bussing. Graglia was extremely conservative, most students in his class were his ideological opposite. To his credit, he allowed freewheeling discussion (arguments) in class. He was pummeled by some very eloquent and brilliant students, some of whom became law review editors. But Graglia gave as good as he got. The students pushed him hard and he pushed back just as hard, if not harder. And the end of the semester, one student, a self-avowed communist, gave Graglia an encomium in words I paraphrase here from lack of exact recall: “You have changed my thinking on some issues, but not all issues. You have helped me understand and appreciate a perspective much different from my own.”
That intellectual diversity plan really misunderstands the sense in which we need intellectual diversity. Infinite intellectual diversity is impossible, but it is important that the public can trust that the expert class includes enough people who share their *values* that they can trust that expert claims aren't constructed to disfavor their values [1].
We need a legal academy where republican representatives and other people on the right can feel confident isn't on the side against Trump so they can trust pronouncements about how unpresidented and illegal his actions are. Even if successful that plan won't result in professors the average MAGA voter -- or even maga legislator -- will trust to share their **values** and therefore make the best arguments for the same things they would care about.
That plan gets you people like Baude on the faculty. And while he is great and his legal scholarship no doubt challenges his colleagues he is culturally and in terms of values a member of the cosmopolitan urban elite.
This makes the problem really hard. That's why I think the best answer isn't to (first) guarantee that we have diverse faculty but instead ensure that people can trust that the arguments for what they want would be made if they could. In other words, we need to make it easier to argue for views which most faculty feel have harmful political consequences.
That's why I favor a kind of academic hypocratic oath that includes clauses requiring you speak up on issues related to your expertise even when you don't like the political valence. I'm not naive enough to think it will compell the strong partisans but it will give permission to the people who just want to correct people. For instance, it creates cover to explain why you might poke holes in the legal argument in Roe other than because you oppose abortion.
---
1: For instance, in science, it isn't really enough to know that, say, climate scientists are all telling the truth and doing careful science if you are on the right because you know they aren't motivated to show that climate change might be a net benefit. All changes have positives and negatives so unless you are an expert in the area you have no idea whether you'd expect this many predicted harms even if climate change was net good.
The U.S. Constitution is the first written constitution of a modern nation, while case law is a legal tradition originating in England. Marbury v. Madison set a precedent for judicial intervention in the executive branch, breaking through the limitations of judicial power and demonstrating judicial dynamism. If case law were merely the exclusive power of the Supreme Court and its appellate justices, that would be one thing. However, lower court judges are now creating their own case law, including disregarding federal procedural rules and the United States Code, and abusing precedents. Therefore, the U.S. judiciary is currently in a state of lawlessness.According to the principle of constitutional supremacy, the Constitution binds all federal laws, state constitutions, and state laws. The constitutional status of lower court judges and Supreme Court justices is different; restoring the rule of law requires first limiting the power of lower court judges.
(noting up top that I recognize the "thing to read" was specifically about the ***legal*** academy) I've never quite understood the argument that "intellectual diversity" on college campuses means a need for "more conservatives"? (Except for the cynical analysis that most people arguing for more conservatives on college campuses just want more political power and it's not actually about intellectual diversity)
First I just don't understand how "liberal vs conservative" is a good way to judge intellectual diversity. Secondly, I thought most comparative political scientists put the US on the right end of the spectrum (e.g. US democrats would be a center-right party in much of western/central Europe). US academic faculty largely self-identifying as "liberal" doesn't really indicate that they are farther left than the "conservatives" of many of our contemporaries.
More broadly, I just don't understand how "liberal and conservative" maps on to most subjects outside law, economics, and political science in a meaningful way? Is there some evidence that a "liberal" mathematics professor is worse at criticizing and challenging the ideas of their colleagues compared to a "conservative" mathematics professor?
“[S]tudents need provocateurs to help them engage with unfamiliar ideas.” But what about the classroom student provocateurs? Has Prof. Fitzpatrick thought about what his proposal would mean for us, err, them?
I graduated from the University of Texas School of Law in 1979. Con Law was part of the 1L curriculum. As I recall, Charles Alan Wright and Lino Graglia were teaching Con Law the semester I took the course. Unfortunately, or so I thought at the time, I was assigned to Professor Graglia’s class. Folks might not recall that in 1976 Graglia had recently authored his book Disaster By Decree, a scathing critique of the court decisions mandating racial integration by bussing. Graglia was extremely conservative, most students in his class were his ideological opposite. To his credit, he allowed freewheeling discussion (arguments) in class. He was pummeled by some very eloquent and brilliant students, some of whom became law review editors. But Graglia gave as good as he got. The students pushed him hard and he pushed back just as hard, if not harder. And the end of the semester, one student, a self-avowed communist, gave Graglia an encomium in words I paraphrase here from lack of exact recall: “You have changed my thinking on some issues, but not all issues. You have helped me understand and appreciate a perspective much different from my own.”