The First Step to Improving Intellectual Diversity, is to Acknowledge There Is A Problem

Debates over the lack of intellectual diversity on law school campuses usually deadlock in one of three ways.

First, many professors assert there is a pipeline problem: on average, fewer qualified conservative faculty members apply for academic positions. Therefore, because the supply of conservative applicants is much lower, it is not surprising that fewer conservatives are hired. Why is the pipeline dryer? Perhaps conservatives–who love money, don’t you know–are more inclined to pursue lucrative careers in private practice. Or, maybe conservatives are less likely to invest the time needed to pursue an advanced degree, so their applications are weaker. Or perhaps the conservative mind, unlike the liberal mind, is less prepared to deal with the delicate, nuanced nature of scholarly discourse, so they choose less rigorous vocations.

Second, other professors claim that there is no overt discrimination against conservative applicants, and indeed, they have never seen a resume that exudes an applicant’s conservative philosophy. Therefore, it is impossible that there is any form of discrimination, because there is no basis on which faculty members could even discriminate.

Third, some professors acknowledge the problem, and candidly maintain that conservative scholars are simply less qualified because their ideas are worse. Or, to use an anecdote one professor related at a debate I attended earlier this year, “the reason why conservatives don’t get hired is because their ideas are just stupid.”

These three defenses illustrate the vicious cycle that is the lack of intellectual diversity. First, because conservatives are less likely to be hired as academics, they are less likely to waste their time pursuing advanced degrees, and more likely to seek careers in lucrative private practice–not the other way around. Further, if law students see that their faculty are overwhelmingly left-of-center, and are less likely to have the mentors to guide them through the process, they are more likely to be discouraged and pass on the career altogether. (Draw whatever analogies you’d like to the impact of an all-white faculty on minority students pursuing legal careers). Second, because any resume that exudes a conservative bend will likely be discarded, right-of-center scholars are drilled on how to make a resume look as innocuous as possible. (I have to laugh, at least internally, when professors insist they have never seen a conservative resume; there are legions of resumes that list employment with NARAL, but not many with National Right To Life). Third, within the academic echo chamber, professors are more inclined to think a theory is “stupid” if it is a theory they are never exposed to in the faculty lounge. Thus, the lack of conservative members on the hiring committee, in the classroom, or at the workshop, reinforces all of these perspectives.

Alas, efforts to challenge this status quo are invariably premised on anecdotal evidence about conservatives being discriminated against at the hiring market. Defenders of the status quo reject this anecdotal evidence, as it does not conform with their experiences on hiring committees, so it cannot be true.

Fortunately, there is a way to resolve this deadlock. The American Association of Law Schools (AALS) maintains extensive records of applicants on the entry-level hiring market through the Faculty Appointments Register (FAR). With proper protections for confidentiality, scholars can systematically compare the intellectual diversity of the applicant pool, with those in fact hired for tenure-track positions. The AALS granted access to the 2007 FAR registry to Professors Trace E. George and Albert H. Yoon. Their research considered how hiring was impacted by an applicant’s race, gender, clerkship, alma mater, advance degrees, and other factors. (Among their findings, “at the intermediate call-back interview stage … women and non-whites are statistically significantly more likely to be invited for a job talk interviews,” but are “no more likely than similarly situated men and whites to get a job offer.”). George and Yoon’s important work, however, did not focus on intellectual diversity.

In January 2016, the AALS executive committee met with several leading conservative and libertarian scholars, including Randy Barnett, Brian Fitzpatrick, Jim Lindgren, Amy Wax, and George Dent. These professors asked for the creation of a Political Diversity Task Force, as well as for access to the FAR data, so they could study how ideology impacts entry-level hiring. One month later, the Executive Committee replied that Task Force would not be created, and the professors would not be given FAR access–even to the same data that George and Yoon relied on. In the year since this letter was sent, no action was taken to respond to the concerns.

The first step to improving intellectual diversity on law school campuses is to acknowledge there is a problem. By refusing to even permit a task force to study the issue, and analyze anonymized data that was already released to other scholars, the AALS instead buries its head in the sand.

This absolute frustration led me to sign a letter addressed to the AALS, which was organized by George Dent, and joined by many of my colleagues. I am sick and tired of debating the topic of intellectual diversity, only to have my interlocutor deny there is even a problem. If indeed there is no problem, let the data speak for itself. I will gladly shut up if the law school hiring process is immune to ideological discrimination–especially in public law fields like constitutional law–and that it is merely the case that not enough qualified conservatives are applying. If it is the case that my own personal experiences at the meat market, and those of my Federalist Society colleagues, are mere delusions, I will gladly move onto other matters. However, if there are problems, we can address them. But it is unacceptable to sit by, year after year, and do nothing.

I reproduce the letter, in its entirety:

February 24, 2017

To the Executive Committee, Association of American Law Schools,

There is growing awareness that conservative and libertarian scholars are grossly underrepresented in American colleges and universities and that this imbalance results from political discrimination. For several years now a number of legal scholars have asked the AALS to support the commitment to viewpoint diversity stated in its by-laws. Some officers have taken our concerns seriously. Immediate Past President Kellye Testy was most cordial to us, as were her immediate predecessors, Dan Rodriguez and Blake Morant. I have spoken briefly to the new President, Paul Marcus, and I hope that he will do likewise.

Judith Areen, the Executive Director of the AALS, seems also to take us seriously. She has alerted program organizers to the need for viewpoint diversity. This may explain why a few of us were invited to participate in AALS programs this year. Several people tell me that panels at this year’s Annual Meeting seemed to be better balanced than in the past. In 2016 I was invited to serve on the AALS Program Committee. Other members of that committee seemed receptive to greater ideological diversity in the Association’s special programs.

Unfortunately, these developments seem to constitute the sum total of progress for viewpoint diversity.

The Executive Committee met with Randy Barnett, Brian Fitzpatrick, Jim Lindgren, Amy Wax, and me during the 2016 Annual Meeting. At this meeting we urged, inter alia, the creation of a Political Diversity Task Force on viewpoint diversity similar to the Racial Diversity Task Force created in 1999 or the three task forces created to deal with issues of globalization. We also asked that viewpoint diversity be made a regular element of the sabbatical reviews for member schools, and that scholars be afforded access to the Faculty Appointments Register (“FAR”) for research, subject to strong protections for confidentiality of information about registrants.

In February, 2016 a letter was sent on behalf of the EC stating that no access would be granted to the FAR or even to the data obtained by Professors Albert Yoon and Tracey George when they were granted access to the FAR in 2007. The letter said that the EC had formed a subcommittee to study access to the FAR. A year later, we have not heard that any action has been taken.

In February, 2016 we also received a letter from President Testy saying that she had appointed a subcommittee of the EC to begin assessing practices and processes to see if changes were needed to meet the goals of the AALS. However, so far as we know, no task force was created and no steps were taken to make viewpoint diversity a regular part of sabbatical reviews. Indeed, so far as we know, the EC took no further action whatsoever in response to our concerns.

We fear that the Executive Committee does not take our concerns seriously and intends to take no action to address them. We urge the EC to alter this attitude. Both scholarship and teaching suffer when law schools are echo chambers in which only one side of current debates is given a voice. Should the EC decide to tackle the issues we raise, we will be pleased to cooperate with you in any way we can.


George W. Dent, Jr.
Jonathan H. Adler
Randy E. Barnett
Josh Blackman
Gerard Bradley
Robert Cooter
Richard Duncan
Scott FitzGibbon
Brian T. Fitzpatrick
Elizabeth Price Foley
Gail Heriot
James Lindgren
John McGinnis
Gregory S. McNeal
Nadia Medzel
Seth Oranburg
James Phillips
Cassandra B. Robertson
Nicholas Quinn Rosenkranz
Ilya Somin
Lee Strang
Eugene Volokh
Kevin Walsh
Lynn Wardle
Steven Ware
Amy L. Wax
Steven Willis
Todd J, Zywicki

Randy Barnett offers more thoughts at the Volokh Conspiracy.

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Two Josh Blackmans Check Into the Same Marriott Hotel

On Wednesday, I mobile-checked into a Marriott property in Washington, D.C. for a one-night stay. When I arrived, I showed the clerk my ID. He gave me a room key, thanking me for my two-night stay. Confused, I told him my stay was only for one night. I checked the confirmation email, and it was indeed for one night. Then there was a moment of confusion.

The clerk told me that someone else named Josh Blackman, also from Texas (Dallas) had checked into the same hotel earlier that night. A different clerk inadvertently admitted him under my reservation! If I had to guess, the clerk saw a Texas driver’s license, and didn’t check the address. However, my Dallas Doppelgänger indeed booked a two-night stay, while I reserved a one-night stay.

After we settled the confusion, the clerk booked me under a new reservation (at a lower rate), and to apologize for the confusion, upgraded my room. So in the end, it all turned out well. I’ll report back if I receive Josh #2s points.

And no, contrary to some Twitter talk, I do not have a clone. I do want to figure out who this person is!

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Justice Sotomayor Errs on “Basic Constitutional Principles”

Justice Sotomayor’s dissent in Arthur v. Dunn, a capital case from Alabama, chides the Eleventh Circuit for “contraven[ing] basic constitutional principles.”

Even more troubling, by conditioning federal constitutional rights on the operation of state statutes, the deci- sion below contravenes basic constitutional principles.

Alas, in stating those “basic constitutional principles,” Justice Sotomayor herself erred. She wrote (with my emphases added):

And for more than two centuries it has been axiomatic that this Court—not state courts or legislatures—is the final arbiter of the Federal Constitution. See Marbury v. Madison, 1 Cranch 137, 177 (1803). Acting within our exclusive “province and duty” to “say what the law is,” ibid., we have interpreted the Eighth Amendment to entitle prisoners to relief when they succeed in proving that a State’s chosen method of execution poses a substantial risk of severe pain and that a constitutional alternative is “known and available,” Glossip, 576 U. S., at ___–___ (slip op., at 1–2).

First, Marbury did not asssert the Supreme Court is the “final arbiter” of the Constitution, nor did it say that the power to interpret the Constitution was “exclusive” to the Supreme Court. The penultimate sentence of Marbury states a contrary rule:

Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.

All “departments” of the government are bound by the Constitution, and each official takes an oath “to support this Constitution.” The former does not have a monopoly on interpreting the meaning of the Constitution. Rather, all officers that take an oath to “support this Constitution,” and have the authority to determine its meaning. This view of shared supremacy is commonly referred to as “departmentalism.” As a matter of practice, members of the executive branch, the legislative branch, and the states, consistently make judgments about what is, and is not constitutional, without ever seeking a judicial declaration. Only the controversial or contested questions are submitted for resolution before a state or federal tribunal—and only the rarest cases are elevated to the Supreme Court itself. This may come as a surprise to most law students—who do little except read cases—but the overwhelming majority of constitutional law is developed outside the friendly confines of Article III.

The case Justice Sotomayor was thinking of, that established the norm of judicial supremacy, was not Marbury v. Madison, but Cooper v. Aaron, which stated:

Article VI of the Constitution makes the Constitution the “supreme Law of the Land.” In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as “the fundamental and paramount law of the nation,” declared in the notable case of Marbury v. Madison, 1 Cranch 137, 5 U. S. 177, that “It is emphatically the province and duty of the judicial department to say what the law is.” This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3 “to support this Constitution.”

This has not been the rule for two centuries, but for about six decades (despite the Cooper Court’s unpersuasive effort to recast Marbury). Under Cooper, indeed, the Supreme Court is the “final” expositor of the Constitution, but we should not pretend this principle flows from Chief Justice Marshall.

In any event, Justice Sotomayor is not alone. Justice Breyer made a similar error in DIRECTV, Inc. v. Imburgia, in which he wrote:

The Federal Arbitration Act is a law of the United States, and Concepcion is an authoritative interpretation of that Act. Consequently, the judges of every State must follow it. U. S. Const., Art. VI, cl. 2 (“[T]he Judges in every State shall be bound” by “the Laws of the United States”).

It is certainly true that the FAA is the “supreme law of the land,” but it does not necessarily follow from the Supremacy Clause by itself that Concepcion is–although it is certainly “an authoritative interpretation of that Act.” Here too, the correct citation is Cooper v. Aaron, not the Supremacy Clause, nor Marbury itself.

For those who are interested, I am working on an article titled The Irrepressible Myth of Cooper v. Aaron. I’ve pulled from the archives all of papers from the Justices that worked on this case, and will trace the drafting of that remarkable opinion, which was signed by all nine Justices. This case is extremely misunderstood–perhaps why the Justices would rather mistakenly cite Marbury, rather than reaffirm Cooper.

Finally, another quip: Marbury said nothing about state courts or state legislatures. Martin v. Hunter’s Lessee established the proposition that the Supreme Court can review judgments from state supreme courts. At the time Marbury was decided, this was admittedly an open question. This is not “axiomatic.”

H/T @Greg651 for drawing this to my attention.

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Due Process and Expedited Removal in the Interior: Part I

President Trump’s January 27 executive order, which denied entry to nationals of certain country, has attracted (by far) the most attention of his various actions. But his new policies to expedite the removal of aliens who have already entered the United States will have a far, far greater impact.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) created a new process known as “expedited removal,” which permits the government to remove certain aliens “without further hearing or review unless the alien indicates either an intention to apply for asylum under section 1158 of this title or a fear of persecution.” This procedure applies to aliens who arrive at the border (including an airport) and are deemed inadmissible–for example, an agent determines that their paperwork is fraudulent, or even if it is not fraudulent, the agent believes that false answers were provided to oral questions. The application of “expedited removal” at the border has raised serious due process concerns, though, for reasons I’v written about over the past few weeks, traditionally courts do not scrutinize the rights of aliens (other than green-card holders) who have not yet entered the United States.

However, the “expedited removal” procedure does not apply only at the borders. 8 U.S.C. 1225(b)(1)(A) (iii)(II) subjects to “expedited removal” an alien who entered the United States without inspection (usually by illegally crossing the border) and who has not “been physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility.” As written, this provision is extremely broad, and has no geographical locus for this class of aliens.

Through a series of rulemakings, the Bush 43 administration interpreted that provision. In 2002, the Immigration and Naturalization Service announced that it would place in “expedited removal proceedings certain aliens who arrive in the United States by sea, either by boat or other means, who are not admitted or paroled, and who have not been physically present in the United States continuously for the two-year period prior to the determination of inadmissibility under this Notice.” (This notice contained an exception for Cubans, under the so-called “Wet-Foot/Dry-Foot” policy.)  Two years later, the Department of Homeland Security expanded its interpretation of 1225(b), to place in expedited removal aliens deemed “inadmissible” who “who are encountered by an immigration officer within 100 air miles of the U.S. international land border, and who have not established to the satisfaction of an immigration officer that they have been physically present in the U.S. continuously for the fourteen-day (14-day) period immediately prior to the date of encounter.” This policy, which focused primarily on border-crossers–hence the 100-mile radius–was crafted to “deal more effectively with the large volume of persons seeking illegal entry.” (Here too there was an exception for Cubans, citing the relationship between our two governments).

Unlike expedited removals at the border, where due process rights do not attach to aliens, once inside the United States, the due process clause applies. There has been a longstanding debate among immigration law professors about whether this provision violates the 5th Amendment. (Gerald Neuman wrote in the Columbia Law Review that this regime, especially after Boumediene, likely violates the Due Process as well as the Suspension Clause). But as the Court’s recent arguments in Hernandez v. Mesa suggest, constitutional rights are often in a nebulous place at or near the border. Indeed, under 8 U.S.C. s. 1357, federal agents can conduct warrantless searches “within a reasonable distance from any external boundary of the United States.” The government has interpreted this “reasonable distance” to be 100 miles. In Almeda-Sanchez v. United States, for example, the Court upheld a warrantless search 25-miles from the Mexican border. The warrantless search in United States v. Martinez-Fuerte was 66 miles from the Mexican border.

DHS’s new policy, however, goes far past the 100-mile border radius, and pushes the jurisdiction to the statutory limit. Any alien found in the interior is subject to expedited removal if he has “been physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility.” This new policy will be published in the Federal Register.

No doubt, there will be challenges to this regime. My first thought concerned possible APA challenges–specifically, was the decision to waive the 30-day comment period proper? Here, President Obama provides a defense. Last month, however, Secretary Johnson eliminated the exception for expedited removal for Cuban nationals encountered on U.S. soil. DHS put this regulation into effect immediately, finding that “good cause” exists to suspend the 30-day notice and comment process. “Delaying the implementation of this notice to allow public notice and comment would be impracticable and contrary to the public interest,” the notice stated.

Second, there may be challenges to the Secretary’s authority to designate such a wide swath of aliens subject to expedited removal. Here too, the Cuba notice provides support for DHS.

Congress explicitly authorized the Secretary to designate categories of aliens to whom expedited removal proceedings may be applied, and made clear that “[s]uch designation shall be in the sole and unreviewable discretion of the Secretary and may be modified at any time.” Section 235(b)(1)(A)(iii)(I) of the Act, 8 U.S.C. 1225(b)(1)(A)(iii)(I).

The strongest challenge concerns the Due Process Clause. Jill Family writes that these aliens are subject to the full panoply of the Due Process Clause, and cannot be removed in this cursory fashion without any hearing. Peter Margulies adds that unlike aliens found near the border, those within the interior–for as long as two years–will have developer stronger ties to the United States. Under Matthews v. Eldridge, such aliens must be afforded more process prior to removal. Peter also notes that there are potential suspension clause concerns.

I will revisit this topic after I’ve reviewed the notice in the Federal Register.

Update: As Ben Winograd pointed out on Twitter, the actual DHS memo did not indicate how far the policy would go–rather I was responding to reports that the agency would push their authority to the statutory maximum. This was why I ended the post on a tentative note. In any event, I will wait till the Federal Register notice is published to write Part II in yet another series on ongoing developments in immigration law.

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ConLaw Class 12 – The Enforcement Powers of the 14th Amendment

Class 12 – 2/21/17

The Enforcement Powers of the 14th Amendment

  • Popular Sovereignty v. State Sovereignty (65-66)
  • Chisolm v. Georgia (66-78).
  • 11th Amendment (78, 379)
  • Hans v. Louisiana (380 – 383)
  • Seminole Tribe of Florida v. Florida (383 – 394)
  • City of Boerne v. Flores (408 – 417).
  • United States v. Morrison (418 – 420).

The lecture notes are here.

Chisolm v. Georgia

The Court delivered its decision in Chisolm seritatim, meaning that each of the five Justices wrote a separate opinion.


Justice James Iredell


Justice John Blair


Justice James Wilson


Justice James Cushing


Chief Justice John Jay

Here are news clippings from the Columbian Centinel, a newspaper in Boston, from March 13, 1973.

Seminole Tribe of Florida v. Florida

City of Boerne v. Flores

Here are photographs of St. Peter the Apostle Church in Boerne, Texas, the subject of City of Boerne v. Flores. I suppose this church makes an exception to the “Though Shalt Not Kill” Commandment for the Religious Freedoms Restoration Act, which met its constitutional demise within the hallowed walls of this house of worship.

These photographs are courtesy of Hanah Volokh.

United States v. Morrison

This is Christy Brzonkala, the plaintiff in what would become United States v. Morrison. I could not find a photograph of Antonio J. Morrison and James Crawford.




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Prop1 Class 12 – Future Interests I: Interests in Transferor and Transferrees

Class 12 – 2/21/17

Future Interests I: Interests in Transferor and Transferrees

  • Introduction, 275-276
  • Future Interests in the Transferor, 277-279
  • Future Interests in the Transferees, 280-283
  • Problems, 283 (1-4)

(Read these pages very, very carefully).

The lectures notes are here.

Example 1. O conveys Blackacre “to A for life.” 0 has a reversion in fee simple that is certain to become possessory. At A’s death, either 0 or O’s successors in interest will be entitled to possession


Example 2. 0 conveys Whiteacre “to A for life, then to B and her heirs if B survives A. O has a reversion in fee simple that is not certain to become possessory. If B dies before A, O will be entitled to possession at A’s death. On the other hand, if A dies before B, O’s reversion is divested on A’s death and will never become possessory.


O conveys Blackacre “to Hartford School Board so long as used for school purposes.”


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Upcoming Events in D.C., Tallahassee, Montgomery, Manhattan, Philadelphia, Orlando, St. Paul, and Elsewhere

Somewhat fortuitously, my schedule was fairly light on travel over the past month, which allowed me to handle the onslaught of breaking legal news in the nascent Trump Administration. My calendar for the Spring Semester is just about booked solid, so if you’d like to invite me, please drop me a line.

Here are my scheduled upcoming events:

  • The Constitutionality of President Trump’s Executive Order on Immigration, Faulkner Federalist Society Chapter (Feb. 27, 2017).
  • National Constitution Center event on Federalism, held at Georgetown University Law Center (Feb. 23, 2017).

  • Model Rule 8.4 and the First Amendment Cardozo University Federalist Society Chapter (Mar. 6, 2017).
  • The Future of the Affordable Care Act, National Constitution Center (Mar. 6, 2017).

  • Intellectual Diversity on the Law School Campus, Barry University Federalist Society Chapter in Orlando (Mar. 20, 2017).
  • Symposium on 5th Anniversary of NIFB v. Sebelius, St. Thomas Journal of Law & Public Policy (Mar. 31, 2017).
  • “Unraveled: Obamacare, Religious Liberty and Executive Power,” St. John’s Federalist Society Chapter (Apr. 10, 2017).
  • The Future of the Supreme Court, University of Massachusetts School of Law (April. 24, 2017).
  • “Unraveled: Obamacare, Religious Liberty and Executive Power,” Houston Federal Bar Association (May 25, 2017).
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