• Professor David Mayer is the faculty advisor to the Federalist Society.

 "And in that balloon, my dear Dorothy, you and I will return to the land of E Pluribus Unum ... to confer, converse, and otherwise hobnob with my brother wizards." --The Wizard, in "The Wizard of Oz" (MGM, 1939)

 The first week of January, along with several of my colleagues on the Law School faculty, I attended the annual meeting of the Association of American Law Schools (AALS) in Washington, D.C. The AALS is the nation's leading organization of law professors; all full-time faculty of AALS member schools (like Capital) are also members of the AALS. The annual meeting consists of dozens of various programs, spanning four days (this year, from Thursday, January 6 until Sunday, January 9), many of them sessions sponsored by one or more AALS "sections" (groups focused on specific interest areas, usually fields of law or specialized topics such as intellectual property or tax).

 The annual meeting also typically includes half-day or all-day workshops on various topics (often involving cutting-edge trends in legal education), receptions sponsored by various organizations (including the law schools themselves -- Capital, for example, had a reception for Washington-area alumni), and of course, plenty of opportunity for socializing, or if you prefer "networking" -- what the Wizard of Oz described as "hob-nobbing" with fellow "wizards" (or, professors).

 Each annual meeting also has a theme. Last year, for example, the AALS conference met in New Orleans and had as its theme "The Professional Responsibility of Professional Schools." This year's theme was apparently selected by the current AALS president, Gregory Williams (dean of Ohio State College of Law -- you know, "that school up north," up High Street, that is); the theme was "A Recommitment to Diversity." Dean Williams described the theme as follows:

 "The AALS embraces diversity as a goal that serves the public and the legal profession by promoting the education of a diverse population of lawyers. Law schools throughout the country have demonstrated their commitment to diversity and have increased the representation of women, minorities, and gays and lesbians among their students, faculty and staff.

 "In the last several years, an assault has been launched against diversity efforts. Court decisions like Hopwood v. Texas and Podberesky v. Kirwan as well as statewide referenda in California and Washington, have limited affirmative action and diversity efforts. These actions go to the very heart of the diversity goals of the AALS.

 "These events call for the AALS to recommit to its diversity principles. This year's meeting will focus on the challenges presented to diversity in legal education and on the opportunities the AALS has to reinforce its commitment to diversity."

 Several things are worth noting about Dean Williams' identification of the conference's main theme. First, despite frequent repetition of the word diversity (by my count, the word is repeated nine times in three short paragraphs), the word is no where defined explicitly. Implicitly, it's fairly clear that the word is being used as a code-word, or euphemism, for certain types of so-called "affirmative action" programs: i.e., certain group-based preferences in the hiring of faculty and staff and in the admission of students. Moreover, those preferences are afforded only to members of certain groups: women, gays and lesbians, and "minorities." The term minorities, of course, is itself vague; from the context of Dean Williams' statement -- his reference to the Hopwood and Podberesky cases (discussed below), for example -- it's also fairly clear that the term is used to refer to racial minorities, and only certain racial minorities (African-Americans, Hispanic Americans, or Native Americans, but not, for example, Asian Americans). Stripped of the misleading code-word diversity, and reduced to its essentials, Dean Williams' statement is a rallying call in favor of affirmative action in law-school hiring and admissions.

 Another noteworthy point about this statement is its explicit negative reference to two federal court decisions: Hopwood, the Fifth Circuit decision declaring unconstitutional the University of Texas Law School's race-based affirmative action admissions progam; and Podberesky, the Fourth Circuit decision declaring unconstitutional a University of Maryland scholarship program exclusively for African-American students. (The U.S. Supreme Court denied certiorari in both cases.) The statement also refers to "state-wide referenda in California and Washington," which among other things, have abolished race-based preferences in admissions programs to state colleges and universities. These court decisions and referenda "go to the very heart of the diversity goals of the AALS," Williams writes. Does this mean that the AALS perhaps should reevaluate its commitment to affirmative action programs? Not at all, it seems: the statement calls for the AALS to "recommit" to its "diversity" principles. Rather than reassessing the wisdom of the policy underlying the AALS policy, the leadership of the AALS has foreclosed any debate over the policy itself and chose instead to hold a strategy session to discuss the "challenges presented to diversity in legal education" -- in other words, to discuss how to evade the law, which increasingly disfavors race-based affirmative action programs. (The Hopwood court, for example, held that the use of race as a factor in public law school admissions was "per se proscribed." A similar admissions program at the University of Michigan is now under challenge in federal courts, and it is likely that the Sixth Circuit will join the Fifth and Fourth Circuits in declaring such affirmative action programs unconstitutional. That decision, of course, could invalidate affirmative action at Ohio State University and other state schools in Ohio.)

 The one-sided nature of the AALS "diversity" theme was underscored by the line-up of panelists for the plenary session. The panel consisted of Bill Lann Lee, the Clinton administration's controversial interim appointee as acting Assistant Attorney General for Civil Rights; Chai Feldblum, a Georgetown University law professor who is a gay/lesbian rights activist; Phoebbe Haddon, a Temple University law professor who is past officer of the left-liberal Society of American Law Teachers; and Gerald Torres, vice provost at the University of Texas. The moderator of the panel was Deborah Jones Merritt, Dean Williams' colleague on the OSU faculty. Two additional panelists were added at the last minute: William Paul, president of the American Bar Association, and Louis Pollak, Senior Judge for the U.S. District Court for the Eastern District of Pennsylvania, a Carter appointee and long-time civil rights activist. Needless to say, not one person on the panel opposed group-preferenced affirmative action programs.

 Charles Fried, a professor at Harvard Law School and former Solicitor General of the United States (in the Reagan administration), wrote an excellent op-ed ("`Diversity': From Left to Far Left"), published in the Washington Post on Monday, January 3, which exposed the hypocrisy of the AALS. "As the roster of speakers and topic announcement make clear, diversity certainly does not mean -- though this is supposed to be a meeting of scholars and intellectuals -- diversity of ideas or points of view, unless your idea of diversity is the full gamut of opinions from left to far left," Fried observed. Noting that affirmative action and racial preferences are extraordinarily complex issues with many sides, he bemoaned the fact that "instead of treating these issues as topics for genuine inquiry and public discussion," the AALS leadership reacted "as if it were rallying the German professoriate to resist Hitler's `assault' -- to use its own word -- on the academy. Except here the assault is by democratically appointed judges and justices and by the voters in California and Washington."

 Summing up his critique of the AALS "rally," as he aptly called it, Professor Fried added: "Intellectuals have influence only if they have fresh ideas to respond to fresh realities, and the fortress mentality reflected in this pathetic performance of the AALS cannot possibly produce anything new. Those who highhandedly would design a program such as this and propose it as a serious academic exercise hope somehow to exert influence. Instead they discredit themselves and condemn their voices to irrelevance."

 In reply to Professor Fried, Dean Williams wrote a letter to the editor (published in the Washington Post on Friday, January 7) which largely failed to respond to these substantive criticisms but instead, sadly, resorted to ad hominem attacks on Professor Fried. Williams' starting point was Fried's characterization of the plenary panel as consisting of "the head of Bill Clinton's civil rights division, a gay rights and disability rights activist, a former lawyer for the Mexican American Legal Defense Fund, and a critical race theorist." Decrying this "one-dimensional typecasting" (while ignoring the fact that such typecasting is exactly what affirmative action programs do), Dean Williams noted that "no panel member has ever worked for the Mexican American Legal Defense Fund" and speculated that Fried "assumed that Gerald Torres ... must have worked from that fund because he is Latino," a not-so-subtle accusation that Fried is a racist. (And, implicitly, a recognition that Fried's typecasting of the other panelists was right on target.) Williams added that Fried "omitted mention of three other panelists," his colleague who moderated as well as ABA President Paul and Judge Pollak. Williams, of course, failed to acknowledge that these additions hardly diversified the panel, unless -- to borrow Fried's apt characterization -- it was to weigh the panel more heavily on the left, as opposed to far left.

 Calling Professor Fried's attack on the AALS "unfounded," Dean Williams observed that this year's AALS meeting "includes more than 75 programs on a range of topics and viewpoints." True, but as Fried noted, "A Recommitment to Diversity" was the theme for the conference as a whole -- the slogan was reproduced on all the conference brochures, for example -- as well as the topic for the conference's plenary session. Williams then summed up his letter by noting that the AALS "is committed to diversity in legal education and has defended the legitimacy of using race as one factor in the admissions process," and concluded by asserting, "But this position has not doomed it to irrelevance, as Prof. Fried maintained."

 Just how "relevant" are the programs of the AALS annual meeting? A glance at the conference program reveals sessions on such topics as "Democratizing Monetary Policy in a Socio-Economic Way," "Global Dynamics of (Un)Fair Employment," "Are People Rational? Does It Matter?," "Racism, Sexism, and Access to Care: What Happens When Physicians Discriminate," "Do Antitrust Teachers and Scholars Matter?," and "Is Justice Just Us? Using Social Science to Inform Substantive Criminal Law." Other sessions, with rather normal-sounding titles, had truly murky descriptions: for example, the Section on Law and the Humanities had a session on "History, Evidence, and the Possibility of Justice," which was described as exploring such questions as "How do events, writings, rumors, and ancestral stories shape ever-changing collective memories that inform group grievances and possibilities for reconciliation? In what concrete situations, based on what kinds of evidence, might groups repair the harms through formal reparations, other forms of acknowledgement and reconstruction?"

 Borrowing again from the "Wizard of Oz" metaphor, such sessions were simply a lot of "humbug" (to put it charitably).

 In fairness, I should note that I found two sessions at the AALS meeting to be quite good. One was the session on "Anti-Discrimination and the Religious Exemption," the joint program of the Section on Gay and Lesbian Legal Issues and the Section on Law and Religion, which was co-planned by Capital's own Professor Wood. Focusing on a recent Ninth Circuit decision that the First Amendment free exercise clause prohibited enforcement of Alaska housing laws on Christian landlords who refused to rent to unmarried couples, the session explored the conflict between claims of religious liberty and claims to be free from discrimination on the basis of sexual orientation. Among the panelists was Professor Michael McConnell, of the University of Utah, one of the nation's premiere experts on law and religion (and particularly free exercise under the First Amendment). My only disappointment in the panel was that the discussion was simply two-sided -- focused on the conflict between the rights of Christians (and other people of faith) who oppose homosexuality as a matter of conscience and the rights of gay and lesbian people not to be discriminated against. One viewpoint not represented was the libertarian viewpoint, which questions the legitimacy of all anti-discrimination laws (defending instead the fundamental right of all persons to use their property as they see fit -- which of course, includes the right of landlords or employers to refuse to rent or to hire anyone with whom they choose not to deal); it's a viewpoint that many libertarian gay activists take, in parting company with "mainstream" gay activists on such issues as anti-discrimination laws. Everyone on the panel, in comparison, seemed to accept without question the legitimacy of government regulations denying people the freedom to discriminate, with the only issue being whether the law should recognize a "conscience" exemption recognizing this freedom only for persons of religious faith.

 The other AALS session I personally enjoyed was the Section on Intellectual Property's session on "The Right of Publicity," a relatively new and controversial area of the law which gives celebrities the exclusive right to commercially exploit their personas. Two of the panelists favored a broad right of publicity: Richard Masur, director and actor (perhaps best known for his role as Bonnie Franklin's boyfriend on the TV series "One Day at a Time) and now president of the Screen Actors Guild; and Bela Lugosi, Jr., son of "Dracula" (or rather, of the actor who was the best-known screen Dracula) and an attorney in California for the heirs of celebrities. The other two panelists -- an attorney for Playboy, representing the interests of publishers; and an intellectual property law professor -- were opposed to broad protection of publicity rights. The discussion was lively, sparked by Mr. Lugosi's video clips of his dad's performance as Dracula and of The Three Stooges, whose heirs he now represents in a case pending before the California Supreme Court. (And it was fun sitting with a bunch of law professors enjoying a "Three Stooges" video!) Not much was resolved in the discussion, but it touched upon many of the important issues involving legal protection for the right of publicity (including such questions as the scope and duration of the right, its inheritability or descendability, and possible "fair use" exceptions to protect First Amendment rights).

 In contrast to the AALS annual meeting, the second annual meeting of the Federalist Society's Faculty Division -- which took place just before the AALS meeting, on Wednesday & Thursday, January 5-6 -- was everything that a law professors' conference should be. Unlike the plenary session of the AALS, the Federalist Society conference had a diversity of viewpoints represented. For example, the opening session on Wednesday night was a panel on "The Future of Miranda" which included Michigan Law School Professor Yale Kamisar, a longtime defender of Miranda rights, as well as Bill Otis, a former prosecutor and critic of the Miranda decision, as well as a more neutral perspective from a University of Virginia law professor. Similar diversity, in the genuine sense of diversity in ideological perspectives, was found in the session on the question "Are Race-Conscious Remedies Constitutional?" and in the luncheon debate on the constitutionality of the Violence Against Women Act.

 The Federalist Society faculty conference also gave scholars an opportunity to briefly discuss their current research and writing projects, and to get comments from their colleagues. At one of these "works in progress" sessions, I gave a short presentation on the article on which I'm currently working, a survey of the Supreme Court's liberty of contract jurisprudence of the early 20th century. In addition, my friend and former colleague Randy Barnett, now a professor at Boston University School of Law and one of America's leading libertarian legal scholars, gave an interesting presentation on "Originalism for Non-Originalists" -- a topic discussed in the book on constitutional interpretation he's currently writing -- which was critiqued by both conservative and libertarian scholars who are skeptical of originalism.

 Also meeting in Washington, on Saturday evening, January 8, was the legal section of the National Association of Scholars, an organization committed to the preservation of academic freedom, particularly against the tyranny of "political correctness" which is pandemic at America's colleges and universities. The NAS meeting this year consisted of a panel discussion on "Scholarship vs. Partisanship," with the panelists representing a range of ideological perspectives, from "liberal" to conservative, on the problems posed by the increased use by legal academics of jointly signed letters and amicus briefs on topics of political concern, such as Second Amendment rights or Clinton's impeachment. The panel explored such questions as what kind of expertise should be a prerequisite to joining such missives and whether they constitute an appropriate use of academic freedom.

 As Professor Fried also noted in his Washington Post op-ed on the AALS meeting, the leftist ideological bias of the AALS is "striking" because, meeting at the same time in the same city, the law teachers' sections of the Federalist Society and the National Association of Scholars -- "both routinely dismissed as `right-wing' and `conservative' -- have mounted discussions of related topics that are genuinely and studiedly diverse in the only sense relevant to academic discourse: diverse in the points of view presented." Yet, as Fried also noted, "these groups are prohibited from meeting in the same hotel as the AALS or publicizing their panels in its literature." The Federalist Society conference was held at the Omni Shoreham Hotel, across the street from the Marriott Wardman Park, the principal hotel for the AALS meeting; the NAS session was held in the Hotel Sofitel, across the street from the Hilton Washington, the secondary AALS hotel.

 Many of the law professors I spoke to at the Federalist Society conference came to Washington just for that two-day conference (and perhaps also for the NAS session); they had no intention of attending any of the sessions of the AALS meeting, which they regarded as largely a waste of time. Among those professors was Michael Krauss of George Mason University, who was quoted in an article in the Washington Times ("Law Professors Argue Group Excludes Conservative Views," January 6), noting that the theme of the AALS meeting, "A Recommitment to Diversity," is "ironic" in that the AALS has "no interest at all in real diversity at law schools."

 Another law professor quoted in the Washington Times article, George Dent of Case Western Law School in Cleveland (who's also faculty adviser to Case Western's chapter of the Federalist Society), noted that it was "petty" of the AALS not to allow groups like the Federalist Society or the NAS to hold meetings at the AALS conference hotel. Professor Dent also observed that the AALS's partisanship was "particularly disturbing because of its role in accrediting law schools, a role it exploits to promote [racial] preferences and other politically partisan positions."

 Yet another law professor quoted in the Times article, Jim Lindgren of Northwestern University, noted that the AALS "conflate[s] race and gender diversity for viewpoint diversity," and that the same problem exists among law schools generally, where politics rather than real diversity often affects faculty hiring. "Almost all of the women and minorities hired by law schools are left of center, but the left of center position is already grossly over represented on law faculties," he observed. The goal of making law schools more representative of the general population -- to make law schools "look like America" -- is often cited by advocates of affirmative action with respect to hiring or admitting more women or members of certain racial minorities. But how representative, or "diverse" in the full sense of the term, are law schools when other attributes, such as political orientation or ideology are considered? How diverse are law schools with respect to viewpoints about law generally or about the role of the coercive power of government as a solution to social problems? More to the point, how diverse are law schools with respect to faculty representation of conservatives or libertarians, who reject the paternalistic "welfare state" approach to public policy, or even "moderates," as opposed to people who identify with the political left? (Certainly the number of people who call themselves "liberal" or "left of center," politically, are less than a majority of the general population.)

 Professor Lindgren has done research on the ethnic, gender, and political makeup of the faculty at the nation's top 100 law schools, and the results of his study are quite revealing. He found that 80% of law professors are Democrats, with only 13% identifying as Republicans. According to Lindgren's study, the most underrepresented groups on law-school faculties (when compared to the demographics of the general population) are Christians and Republicans in general. White female Republicans are the rarest. He points out, for example, that until a short time ago, Harvard faculty members had not hired a Republican-leaning professor in over 25 years. "The question I would give as a thought experiment is this," Lindgren says. "Imagine what the law, Congress, and the courts would look like if Harvard hadn't hired a Democratic-leaning professor in 25 years. The world would be a different place!"

 An important function of the Federalist Society at law schools nationally is to provide some much-needed diversity. A special report in the Dec. 20, 1999 issue of Insight magazine ("Law Schools vs. Dissenting Views") describes this important contribution which the Federalist Society has made to American legal education. The article discusses the history of the Society, tracing its growth from a small symposium organized in 1982 by a handful of conservative and libertarian students at Yale, Harvard, Stanford, and the University of Chicago, to the national organization it is today, with more than 5000 members in its student division at roughly 150 law-school chapters and more than 15,000 members in its lawyers division. In the 1997-98 academic year, Federalist Society student chapters held 347 nationally sponsored events, which drew a total audience of 27,000 -- a 51% increase in attendance from the year before. All these events helped to counter the left-liberal orthodoxy which prevails at most law schools, and to inject some diversity into legal education, particularly for students at those law schools which have few if any "moderate" Republicans, let alone genuine social conservatives or libertarians on their faculty.

 Incidentally, I should note that Capital University Law School, thankfully, is an exception to these generalizations. Not only is our faculty truly more diverse, with regard to viewpoints or ideology, than the typical law school faculty; but our faculty members generally are quite tolerant of genuine differences among ourselves. In fact -- and here I think I can speak with some confidence on behalf of my Law School faculty colleagues -- we pride ourselves on both the collegiality and the diversity of our faculty. Compared to most other law schools, the left/liberal orthodoxy is far less tyrannical here at Capital.

 The author of the Insight article reports that "the vast majority of the dozens of law students and professors Insight talked with for this article wouldn't comment for the record on the ideological diversity of their institutions because they didn't want to overgeneralize about problems they didn't know in detail, and they would say less about their own institutions for fear of repercussions." Insight also reports that "most libertarian and conservative students interviewed for this article from Yale to the University of San Francisco said they rarely speak up in class and that they always `write liberal' on exams because they fear professors might grade them down for espousing dissenting viewpoints." Sadly, that problem -- arguably the most important "diversity" issue facing legal educators today -- wasn't even mentioned at the AALS annual meeting.