Wednesday, May 20, 2009

The Most "Conservative" Law Faculties?

My comment the other day that Sai Prakash's move from USD to Virginia give UVA the strongest "conservative" public law group of any law school in the country prompted one reader to ask about other "conservative" faculties.

Bear in mind, of course, that terms like "liberal" and "conservative" operate as indexicals:  what they refer to depends on the speaker.  From a global or cosmopolitan standpoint, the vast, vast majority of law faculties in the U.S. are conservative or "on the right" on most major issues (except perhaps some issues of so-called "identity politics" or "diversity").  But from within the US, the terms "liberal" and "conservative" pick out different concerns:  conservative law faculties are friendlier to market-based solutions, rather than government regulation; to judicial restraint rather than aggressive judicial review; to "originalist" theories of interpretation rather than "moral" or "evolving standards of decency" readings of the constitution; to cost-benefit analysis; to restrictive, rather than, capacious interpretations of individual rights; to federalism and limitations on federal power; and so on.

I'll focus on the "public law" groups, that is, those faculty working in those fields where ideological purity is most visible, such as constitutional law, administrative law, environmental law, parts of international law, criminal procedure, and legislation and stautory interpretation.  In the private law areas, positions on the right (pro-market solution, anti-regulatory, etc.) probably dominate most places, certainly at the elite law schools (hence the right-wing complexion of US law schools from a global perspective).

Among the top law schools, Northwestern University and University of Virginia are clearly both the farthest to the right and with the most prominent scholars, but Harvard University isn't far behind (with Goldsmith, Manning & Vermeule, among others).  University of Notre Dame is right up there, and so too George Washington University, University of San Diego, and George Mason University.  Chapman University and Brigham Young University would also have to be mentioned as centers of conservative legal scholarship, though probably not as prominent as the preceding.  Most, but not all, of the top law schools have at least a couple of prominent legal scholars "on the right"--e.g., Epstein & E. Posner at Chicago, Baker & Rodriguez at Texas, Bainbridge & Volokh at UCLA, Barnett & Rosenkranz at Georgetown, Benjamin & Young at Duke, Bobbitt (on some issues) & Monaghan at Columbia, among others--and certainly the American right is better-represented on U.S. law faculties than the social democratic left, but that just speaks, again, to the indexical character of the terms "left" and "right," or "liberal" and "conservative."  (Chicago, if anything, tilts "left" these days in the public law areas, a big contrast, obviously, from 30 years ago, when the faculty was both less ideologically and intellectually diverse--which no doubt explains why Justice Scalia is so upset!  Even in the private law areas, where economic and marked-based ideas dominate, most of my colleagues are, best as I can tell [and it is frankly not obvious in most cases], relatively liberal in the American sense of that term.)

Of course, it is probably worth remembering that in most areas of scholarship and legal study, political ideology sheds almost no light on the substantive, analytical issues serious scholars and students must grapple with.  If there were more law in "constitutional law," or if constitutional law issues did not loom so large in public consciousness, there would probably be less obsession with the whole issue of "liberal" and "conservative" faculties.

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