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Diversity among institutions -- and how it fosters diversity among viewpoints

June 4, 2012 10:23 AM

Walter Olson

In our different ways, Prof. Torres and I both aim to advance diversity -- in my case, diversity between institutions. If universities were made genuinely autonomous tomorrow, I expect some would extend systematic preferences to minorities, others none at all. Some (as with Hastings in the old days) would develop a specialty in older faculty hires, others the young and inexpensive, and so forth. The resulting competitive institutional ecology might help test some of the business-school and HR theories about whether a specific kind of demographic diversity is uniquely suited to collegial achievement in scholarship (I suspect it isn't, since some great intellectual institutions over the centuries have been hyper-diverse, others hyper-un-diverse, and many in between.) At the same time, were competing approaches to diversity permitted, newcomers would be more likely to find an institution that suits their own desired experience: some would seek a pledge that advancement would be race- and sex-blind, others an assurance of encountering colleagues from backgrounds very different from their own.

Of course that's not the world we live in. In our actual world, all law schools must conform to a prescribed format. Accreditation officials will haul up any institution that tries to be race-blind, and HLS will scramble to claim hiring credit for Prof. Warren's vague family lore of Cherokee ancestry.

Should outsiders care? One reason to care might be if the prevalence of identity politics tends to reinforce the problem (assuming it is a problem) of ideological imbalance in the legal academy. In Schools for Misrule I conclude that it does, though only as one of many contributing factors.

One clue is that the ideological tilt varies so much from field to field. As Prof. Leiter's citation rankings confirm, there is much closer to a left-right balance (or, alternatively, a lack of strong political identification) in such fields as tax, business law, inheritance, and intellectual property. The closer one approaches to the identity-politics minefields, the stronger the liberal-to-Left dominance: in a field like employment discrimination law, setting aside one book by Richard Epstein, there is far less visible a bench of "defense-oriented" writers than there is in torts or antitrust. Are any rising academics doing work on disabled rights or Indian law that's systematically skeptical of expansive ADA interpretations or tribal powers? I hope Prof. Torres can name them, because I can't.

To be sure, a fair number of legal academics do write in opposition to the claims of feminism and gay rights. But since most of them are clustered at institutions like Brigham Young, Notre Dame, and Regent, I'd call that an exception that tends to confirm the pattern: religion has successfully managed to stake out its own identity-politics turf.

I'm not one to join the doomsayers. My book argues that identity politics in the law schools has tended to loosen its grip over the past decade or two, and that over the same period schools have opened themselves to more diversity of viewpoint. I hope that trend continues.

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