I have been lucky enough to give many talks at law schools, and whenever I take the microphone--and, inevitably, lower the microphone--the question flashes on people's faces: "Why him?" For one thing, I have no data to share, no findings to report, no technical solutions to offer. And unlike the faculty who have spoken, my experience of the legal academy hardly spans even two years. On the other hand, I have spent those years pushing the most hated conservative position on the most heated political issue at the most socially liberal law schools in the nation. What my experience of the legal academy lacks in length, it has amply made up in intensity.
So you will have to go elsewhere for general and systematic data, with all its probative force. But I hope my remarks do have the motivating force of the personal and anecdotal. In that mode, I will draw on my experience at Yale, and in talks and debates at other law schools, to say a word about our topics: Is there a diversity problem? Should we care? And what should we do?
Finally, I have titled my Essay "How the Law School Can Succeed--an Invitation," which of course riffs on the title of Duncan Kennedy's famous 1971 student note, How the Law School Fails: A Polemic. (1) I do this first in the hope that my piece, too, becomes a classic, if only through failed Google searches for his. But I also intend the contrast between our titles to highlight a shift of emphasis. Professor Kennedy focused on diagnosing the legal academy's ills. (2) I will begin there--with its failures of diversity--but my emphasis will be on reasons to improve, and on the evidence that improvement is well within our reach. The fact is that I have loved my time at Yale and visiting other law schools. I am writing not as an alien or exile with idle grievances to air, but as a member of the minority, pushing for reform from within, with all the zeal and hopefulness of a local who intends to stay.
I. IS THERE A LACK OF INTELLECTUAL DIVERSITY IN LAW SCHOOL FACULTIES?
The problems that bedevil the social science on this question are well-known. What are good proxies for ideological diversity? Along what axes should we measure it? Can we measure it meaningfully across disciplines as different as antitrust and admiralty? In truth, of course, we cannot answer these questions until we know why we care about diversity in the first place. A professor at Yale once told me that she absolutely agreed on the need for conservative faculty. "After all," she said without irony, "we liberals have trouble getting you all internships in Republican administrations."
Now if that is your purpose, then party affiliation is what you should tally. But if your purpose is also to enrich discussions on major issues of the day, then all the law-and-economics scholars from Coase to Calabresi will not make up for the absence of, say, a single pro-life professor. (And as far as I know, Yale has about that many law and economics professors, and no pro-lifers.) So there is no all-purpose answer to the question of whether we have a diversity problem, or how to measure it.
But if sociological precision is elusive, and the population of interest--your colleagues--is manageable and familiar, then personal impressions matter more. Indeed, one reason to care about diversity is its effect on classroom climate; yet that is something that personal experience more immediately captures than comparing campaign-donation rates. And from this personal vantage point, I think certain diversity deficits become clear.
A few weeks into my 1L fall, I had to miss an afternoon class to drive down to Seton Hall for a marriage debate. The following Monday, a classmate made small talk by asking where I had been. "A debate!" I said. She cheerfully obliged by asking what the debate was about. I told her it was on gay marriage--at which point she asked, with a knowing smile, "And which side were you on? …