March 27, 2006,
EDITOR'S NOTE: This piece appears in the March 13, 2006, issue of National Review.
This is a nerve-wracking time of year for law-school deans, as they await the results of what amounts to the Bowl Championship Series for their profession: On March 31, U.S. News & World Report will release its rankings of the top 100 law schools in the country. Most of the deans insist that these assessments are "inherently flawed" and "unreliable" and virtually all of them will sign an open letter to law-school applicants that says so.
But Daniel Polsby, the dean of the George Mason University School of Law, is different. His name will not appear on the forthcoming annual missive, and he's actually looking forward to the U.S. News survey. "We hope to move up a few places this year," he says. That would certainly be in keeping with a decade-long trend: Mason vaulted from 71st place in 1995 to 41st in 2005 an impressive achievement given that these rankings tend to remain static from year to year. Even more remarkable is that this fast-rising star in the law-school firmament possesses a faculty of professors who lean decidedly to the right.
This fact alone makes the GMU law school unique. As with just about every other precinct of higher education, liberals dominate law schools. A study in The Georgetown Law Journal last fall found that among professors at leading law schools who made political campaign contributions of at least $200, 81 percent of them gave almost exclusively to Democrats. Only 15 percent preferred Republicans. This preference was especially lopsided at Yale, Harvard, and Stanford the top three law schools in the most recent U.S. News survey where donations to Democrats topped 90 percent.
GMU wasn't included in the survey, but its figures wouldn't have looked the same. For one thing, the faculty includes an unusually high number of Republicans. Several professors have moved in and out of the Bush administration, such as Timothy J. Muris, who was chairman of the Federal Trade Commission, and William H. Lash III, who was an assistant secretary at the Commerce Department. Those who aren't Republicans are often Libertarians. "I knew things were different here when I saw a particular bumper sticker in the parking lot," says Ronald Rotunda, a professor who arrived from the University of Illinois in 2002. "It said: 'There's no government like no government.'" To be sure, there are Democrats on the faculty, including the guy who runs the school's legal-aid clinic. But rather than sue police departments and defend death-row inmates the all-too-typical activities of groups like this Joseph Zengerle's students provide help to members of the military and their families. And if that weren't enough, Mason is the only law school in America that has a chair endowed by the National Rifle Association (or, to be specific, an NRA foundation); Nelson Lund is the Patrick Henry Professor of Constitutional Law and the Second Amendment. It is perhaps not too farfetched to think that GMU's law school will become to the early 21st century what the University of Chicago Law School was to the latter half of the 20th a high-caliber bastion of conservative (or at least classic-liberal) legal thinking.
A TRANSFORMATIONAL DEAN
The International School of Law was founded by Evangelicals in a church basement in 1972; seven years later, a growing George Mason University absorbed and secularized it. The school was a run-of-the-mill institution until 1986, when Henry Manne arrived on its campus in Arlington, Va. (The law school was then in a converted department-store building.) Manne was already a respected scholar in the "law and economics" movement, which says laws should be evaluated not only for their ability to dispense justice but also for their economic impact. Its founding fathers include Gary Becker and Ronald Coase both winners of the Nobel prize for economics as well as Richard Posner, who is now a prominent federal judge. The law-and-economics scholars were initially associated with the University of Chicago, which is where Manne gained his first exposure to this philosophy as a law student. Since the 1960s and 1970s, however, the movement's influence has broadened to the point where every good law school has at least a handful of economic specialists on the faculty.
It would be wrong to say that law and economics is an exclusively conservative or libertarian field. Two years ago one of its pioneers, federal judge Guido Calabresi (a former dean of Yale Law School), compared the election of George W. Bush to the rise of Mussolini and Hitler (he later apologized). Nonetheless, law and economics has allowed many conservative professors to find a safe harbor within legal academia. "Economics is understood to be an objective discipline, particularly as compared to other approaches," says James Piereson, former executive director of the John M. Olin Foundation, which spent millions of dollars on law-and-economics programs. "To the extent that economic analysis points in the direction of individual choice and the efficiency of markets, it is a powerful tool for those who wish to restrain the growth of government."
Manne's idea was to build a law school that didn't merely employ a couple of economists: He believed the ideal law school would make the study of economics central to its mission. "I thought it would be important and worthwhile to create a community of scholars and students who would share a single-minded focus," says Manne. In the late 1960s, he was asked to plan a new law school for the University of Rochester. When fundraising faltered, Manne moved on to the University of Miami and then to Emory University. While at these two schools, he ran the Law and Economics Center, which sponsored economics seminars for judges and law professors. Despite these activities, Manne never stopped thinking about what he had originally set out to accomplish. "I just never thought I'd have a chance to do it."
Meanwhile, George Mason University was looking to give its law school an extreme makeover, and so it recruited Manne to dust off his old blueprint and take over as dean. The law-and-economics approach seemed like a good fit because although Mason was not an outstanding university even now, it is occasionally mocked as "the best community college in northern Virginia" it could boast of a world-class economics department whose faculty members included James Buchanan (a Nobel winner) and Walter E. Williams (a prominent spokesman for free-market ideas).
Manne began by getting rid of the existing faculty something that few deans are ever able to do. Professors who didn't have tenure found that their contracts weren't renewed; those who did have tenure were offered financial incentives to leave. They were systematically replaced by law-and-economics scholars, many of them known to Manne because his Law and Economics Center had run seminars for law professors and fellowship programs for students. "This was my secret weapon," says Manne. "These people were undervalued, and hidden away at places like Mercer University in Atlanta or McGill in Montreal. I knew where to find them."
To use a baseball metaphor, Manne was a scout who specialized in the minor leagues. Whereas his competitors were obsessed with signing big-name free agents in hot fields such as feminist legal theory, Manne quietly assembled a team of undervalued unknowns. "If the market discriminates against conservatives, then there should be good opportunities for hiring conservatives," says Polsby. This is exactly the sort of observation one would expect a market-savvy law-and-economics scholar to make. Manne and his successors were able to act on this theory, and though Mason has in recent years expanded its recruitment of non-economics specialists, it has stuck by the core observation that law schools routinely overlook raw talent. Associate professor Craig Lerner, for instance, studied under the political theorist Allan Bloom at the University of Chicago and worked for Kenneth Starr on the Whitewater investigation. Listing either of these experiences on a résumé might easily turn off a hiring committee dominated by liberals, which is to say a hiring committee at just about every other law school. And so Lerner turns out to be exactly the type of candidate that attracts GMU. "Have you read Moneyball?" asks Todd Zywicki, another one of Mason's bright young profs, in reference to the best-selling book by Michael Lewis on how the Oakland Athletics franchise assembled playoff-caliber teams on a limited budget. "We're the Oakland A's of the law-school world."
THE RISING STAR
By just about any measure, this strategy has worked. Shortly after Manne took over, applications to the school a rough barometer of institutional quality began to rise. Within two years they had more than doubled, and within four they had nearly tripled. There were plenty of other milestones as well. In 1988, federal court of appeals judge Douglas H. Ginsburg a Reagan nominee to the Supreme Court before he withdrew amid a pot-smoking controversy began teaching part-time at Mason. Other prominent federal judges also joined the faculty, including Pauline Newman, A. Raymond Randolph, and David Sentelle. The school's emphasis on economics was so strong that it hired several professors who had both economics Ph.D.s and law degrees, as well as a few who possessed only the Ph.D.
One of these non-lawyers was Vernon Smith, who arrived on campus five years ago. "I'd never taught at a law school before, but GMU was a natural fit for me," he says. In 2002, Smith won the Nobel prize in economics. Only one other law school can boast of a Nobel-prize winner, but, amazingly, Mason may have a shot at a second winner: Gordon Tullock, who pioneered the academic concept of rent-seeking (the use of political muscle to gain advantage over competitors or extract wealth from the economy), is on the law-school faculty, and he's often described as one of the most deserving economists never to have had his day in Stockholm. Mason's intellectual edge is sharpened further by the presence in the law-school building of the Institute for Humane Studies and the Mercatus Center, both respected free-market organizations. And the school is on the frontier of a new field called neuroeconomics. "We examine the neurological foundations of economic behavior," says Kevin McCabe, another professor without a law degree. Suffice it to say that GMU is home to the only law school in the country that owns an MRI machine.
At the same time, the GMU law school has climbed the U.S. News rankings. Some years have been better than others: In 1999, as a result of poor data collection, there was a temporary but eye-popping dip to 113th. Slowly but surely, however, Mason has shed its status as a "safety" school for students who couldn't gain admission elsewhere. In 2001, it broke into the top 50 a group that U.S. News describes as "first tier" and it hasn't looked back. Since 2003, Mason has floated between 38th and 41st. It probably would do even better but for the particular ways U.S. News calculates worth: Forty percent of a school's ranking is based on reputation, as determined by judges and lawyers (15 percent) and law professors (25 percent). "If we had Dartmouth or Princeton's name," says Polsby, picking two well-regarded schools that don't have law programs, "we'd be a top-20 school overnight." And by weighing the opinions of law professors so heavily, U.S. News gives liberals a lot of influence; Mason almost certainly pays a price for the perception that conservatives aren't exactly an endangered species in its faculty lounge.
It doesn't take an advanced degree to nitpick the U.S. News survey or to imagine an alternative methodology that would benefit Mason. Brian Leiter, a professor at the University of Texas, has created several ranking systems that rely entirely on objective criteria. It might be said, for instance, that a school is only as good as its students. The 75th-percentile LSAT score of Mason's entering class in the fall of 2005 was 166 enough to tie it for 22nd best (with seven other schools). It might also be said that a school is only as good as its professors. To measure this, Leiter has created a "scholarly impact" rating based on faculty per capita citations in scholarly journals and books. On this scale, Mason ties for 23rd (with four other schools). Then there's the Social Science Research Network, which counts the number of times faculty papers are downloaded from the Internet; over the last twelve months, Mason professors rank eleventh.
Mason's location just a few Metro stops from downtown Washington, D.C. is both a blessing and a curse. It helps the school attract outstanding faculty members, especially in areas such as intellectual property because the region is rich in practicing patent attorneys who are willing to teach courses on the side. GMU also attracts top-flight speakers, such as Supreme Court justices and attorneys general. The problem is that Mason is a public university in Virginia, and it isn't the first place that state lawmakers look when they think about funding law schools; Richmond is full of alumni from the law schools at the University of Virginia and William and Mary. "We had to fight for every penny we got," says Mark Grady, a UCLA law professor who succeeded Manne as dean in 1997 and served until 2004. The task was made slightly easier by the fact that Republican governors appointed conservatives such as Heritage Foundation president Edwin Feulner, former attorney general Edwin Meese, and former Reagan official Jim Miller to GMU's board. "We wouldn't have made nearly as much progress if they hadn't been there to fight for us," says Grady. Although the squabbling over money won't ever disappear, it may lessen as Mason's relatively young pool of alumni ages and has more money to donate something most other schools already take for granted.
What's clear is that conservatives are increasingly coming to see Mason's law school as an important ally. Manne's Law and Economics Center continues to hold its seminars for judges, under the leadership of Prof. F. H. Buckley and its enduring credibility is a major reason that Mason scores as well as it does among the judges polled by U.S. News. Moreover, GMU's faculty was instrumental in filing an amicus brief with the Supreme Court in defense of the Solomon amendment, a law that prohibits schools accepting public funding from banning military recruiters from campus. "Does this make us conservative?" asks Polsby, who organized the brief. "I don't think so. I think it exposes other schools that want to ban the military as truly radical."
Those who want to celebrate diversity ought to cheer for Mason, because it provides a much-needed dose of true diversity the intellectual type to the world of legal education. "I've always maintained that it's more important to have this diversity between law schools rather than within them," says Manne, who has watched the progress of GMU with pride from his semi-retirement in Florida. Todd Zywicki looks at it another way. "We have lots of intellectual diversity here," he says. "There are conservatives and there are libertarians." And things are looking up for all of them.