Viewpoint Diversity

The University of Chicago Law School, 1980s: A Love Song

1

There is a lot of discussion, these days, about viewpoint diversity at colleges and universities. The discussion is important, of course, but in my view, there is something a bit off about it. It skims some surfaces. It has a clanging sound.

One problem is that we must be speaking of viewpoint diversity of certain kinds, not viewpoint diversity as such: It is not important that history departments have faculty members who deny the Holocaust, or that physics departments have faculty members who insist that we are living in a simulation, or that law schools have faculty members who admire and follow Mao. We must be speaking of the right kind and amount of viewpoint diversity (and we need a viewpoint to know what that is).

There are other issues, which I see, right now, only through a glass darkly (meaning, I don’t see them clearly).

For that reason, I am going to try to get at the subject indirectly, by discussing a time and a place where viewpoint diversity, of certain kinds, flourished (and was essential), but where it would be hopelessly inadequate to say that viewpoint diversity was the whole story.

2

The University of Chicago Law School, in the 1980s, was the best academic institution I have ever seen.

There was Richard Posner, a giant and a force of nature, and probably the most admired colleague of all (and the most feared, too).

There was Frank Easterbrook, young, tall, fierce, seemingly Posner’s disciple (but also a textualist, which Posner emphatically was not).

There was Richard Epstein, Posner’s main rival, full of energy and fun (and maybe the straw that stirred the drink). There was David Currie, a man of limitless honor, goodness, and integrity.

There was Antonin Scalia, focused on administrative law, fun and warm, caustic, full of mischief.

There was the old guard: Edward Levi (former Attorney General), Walter Blum, Bernard Meltzer (doctrinalist beyond compare), Philip Kurland.

(Gosh I loved those four, and particularly miss, these days, Kurland and Levi.)

There were the young turks, including Diane Wood, Douglas Baird, David Strauss, Michael McConnell, and yours truly, and a little later, Elena Kagan and Larry Lessig (and a little later than those two, Barack Obama, as a lecturer). There was Geoffrey Stone, free speech expert extraordinaire.

(Parenthetical note: Has any law professor, ever, been smarter, and kinder, and a better colleague than Michael McConnell?)

There was Ronald Coase, a bit elusive, quiet, cryptic, charming.

Above them all: There was the dean, Gerhard Casper, charismatic, a true leader, with a wry smile and clear principles about what made a great institution. He believed in, and insisted on norms, such as: Law professors should aim to be in the office (every day). Also: Colleagues should get along.

Occasionally, there was Gary Becker, economist and friend to the law school. There was George Stigler, larger than life, with a big smile and a mind like a knife.

3

You might notice that among those just mentioned, there are six federal judges (including two Supreme Court justices), three Nobel Prize winners, and one president.

But I want to emphasize something else: the crackling energy and the sheer intensity of the place.

We had lunch together four times a week: Monday, Wednesday, Friday, and Saturday. The roundtable, as it was (and is) called, was usually full. Sometimes a latecomer couldn’t get a seat. I would often make a lame joke to the effect that some Greek had proved that you could always add a seat to a roundtable - and we would almost always add a seat.

At these lunches, the discussion was always substantive. Always. No one discussed sports or the law school as such, or their families, or other law schools, or even politics, unless there was something academic to say about it. If someone said something that wasn’t substantive (about students, for example, or the news, or gossip), they would get a puzzled, stern, disapproving stare; the norm would kick in, and someone would discuss an article they were thinking about writing.

Examples: Stone had a new idea, to the effect that “viewpoint discrimination” should be forbidden under the First Amendment. Or Epstein had a new idea, to the effect that the takings clause had been interpreted far too narrowly. Or Epstein had a new idea, to the effect that New York Times v. Sullivan was all wrong. (Epstein seemed to have a new idea every day.)

Or Posner had a new idea, which is that courts really should promote “wealth maximization.” Or Easterbrook had a new idea, a seemingly odd one, about “statute’s domains.”

Or McConnell had a new idea, to the effect that the courts had gotten the Establishment Clause all wrong. Or Scalia had a new idea, to the effect that courts could not readily enforce the nondelegation doctrine (and shouldn’t try). Or Strauss had a new idea, to the effect that constitutional law is really common law.

At those lunches, the energy was crackling. Disagreements were fierce. When Epstein and Posner went at it, it was Ali against Frazier, or Bird against Magic, or Eminem against Papa Doc. Epstein was younger and more emotional; he spoke in rapid bursts. Posner was more stately but equally tough. Epstein liked strict liability; Posner liked negligence. Epstein liked autonomy; Posner liked efficiency.

When the two went at it, we would sit back and watch and marvel, with wonder and awe. Those battles were my favorite, I think.

(A statement of immense personal gratitude, right now, to both Epstein and Posner. Thanks, Richard; thanks, Dick. So many of us would have done less, and been less, without you.)

4

Countless projects were launched at those lunches. You would come with an idea. You would venture the idea. People would discuss the idea. People would tell you that the idea was nonsense.

By the end of the lunch, you might well be on fire. You would itch to start writing.

A number of strands of current American legal thought, and a number of strands of current American law, emerged from those lunches. (Almost all of my own early scribbling came from those lunches. Some of my current scribbling, too, decades later.)

5

There was a lot of viewpoint diversity, that’s for sure. It was a small faculty, but you could find a ton of different opinions.

Stone was left-of-center; he was the law school’s young prince, I think. Posner was right-of-center; he was the law school’s king, even as a judge. A follower of Stigler, he founded economic analysis of law, which definitely leaned right in those days.

Epstein had strong libertarian leanings. He liked property rights. He liked freedom of contract. He had an account, growing every year, of what government could and could not do.

Currie, Easterbrook, and Scalia were originalists, before originalism was all that much of a thing. (Posner was no originalist. Stone and Strauss were not originalists, not close.)

Meltzer seemed to me to be a New Deal liberal. Blum didn’t much like the progressive income tax (he was conservative, I am pretty sure). Levi was a Republican of a Burkean sort.

Wood did not seem highly political, not at all, but she did seem moderately left-of-center. McConnell was, broadly speaking, a cultural conservative, very different from Epstein and Posner. Strauss was left-of-center; he was focused on racial discrimination (and wrote brilliantly about colorblindness).

(Note: There were no Marxists. There were no critical legal studies types. No one followed Foucault. Behavioral economics was not much around, back in the 1980s; to the extent that it was mentioned at all, it was ridiculed. There was viewpoint diversity of specified kinds.)

Part of the crackle of the place was the conflict of different views, that’s for sure. But politics seemed incidental, most of the time. Politics wasn’t front and center - not close. People took issues as they came. (That’s too simple, I know, I know.) You couldn’t predict where Baird, Stone, Blum, Strauss, Meltzer, and Easterbrook would end up on new questions. Positions were usually developed in the process of discussion, not taken in the first seconds.

Here’s another way to put it. People paid close attention to the force of the particular argument. No one thought, “I am left-of-center, and so this is what I think.” Of course their background values would affect their views. But if McConnell made a certain argument about the Free Exercise Clause, or if Currie had something to say about the nondelegation doctrine, the question was: What arguments, and what evidence, do you have in your favor? Integrity was practiced (and pretty much taken for granted).

Agreement and disagreement would shift. Epstein, Currie, and Easterbrook would be in accord on one set of issues. On another set of issues, Currie and Easterbrook would think that Epstein had it all wrong, and Epstein would return the favor.

(Viewpoint diversity, of the kind that Chicago had, never verged on identity politics.)

6

A defining feature of the place was its sheer intensity. People were present - physically, for sure, but more than that. The stakes seemed very high.

What we were discussing, we thought, greatly mattered. What we thought, we thought, greatly mattered. That was crucial.

7

There was of course a “Chicago School.” It involved law-and-economics. It included Coase, Posner, Bill Landes, Easterbrook, Baird, Epstein, Ed Kitch, Dennis Carlton, and Dan Fischel (also Becker, Stigler, and Aaron Director). It flourished in part because like-minded people engaged constantly with one another.

Posner founded the Journal of Legal Studies, which featured a lot of work by the Chicago School. To many, JLS seemed a younger sibling to the Journal of Law and Economics, also a home for Chicago School work.

Viewpoint diversity was not a feature of the Chicago School. Sure, there were internal disagreements, but one reason for its success was that people who thought alike spurred each other on, and ensured that a defining framework would go both deeper and wider.

It is important to note that what I am describing here is both common and important. Think, for example, about Austrian economics.

8

I haven’t mentioned how much fun all this was. People went to those lunches because they loved those lunches. It didn’t feel like a duty (though it was). People did academic work because they loved doing academic work. At Chicago in the 1980s, people had a blast.

That was, I think, a secret to its success.