The Scalia School: a Bastion of Conservative Thought

The Scalia School of Law at George Mason University has significant disadvantages in the scrabbling for prestige among American law schools. Founded in 1979, it’s a relatively young institution, which means graduates have had less time to accumulate wealth, donate, and leave bequests than their counterparts at older institutions have done. As a result, the school’s endowment is a negligible $4.4 million. Scalia also is part of a public institution that for many years treated it as a cash cow to be milked rather than an asset to be invested in.

Yet Scalia fares well in rankings of law school prestige — having made it into the Top 50 among 200 law schools every year over the past 18 years and having scored 41st in the most recent US News & World-Report ranking. In a 2015 ranking of scholarly impact based upon the number of law journal citations by its faculty, Scalia did even better: It scored 21st.

One reason that Scalia “punches above its weight,” suggests Dean Henry Butler, is the intellectual diversity of its faculty. “Conservatives and libertarians are under-valued in the academic marketplace,” he says. “That allows us to recruit a stronger faculty.”

Lawyers tend to be more liberal than the general population, and law school professors more liberal than practicing lawyers. A 2017 research working paper, “The Legal Academy’s Ideological Conformity” found that only 15% of law school professors are politically conservative compared to 35% for lawyers as a whole.

Scalia is a marked exception to the national norm. Of the 49 highest-ranked laws schools in the country, Scalia had the largest percentage of conservative professors, roughly 80%. Only two other law schools, Brigham Young University and Pepperdine, had majority-conservative faculties.

Not surprisingly, the conservative faculty of GMU’s law school, named after deceased conservative Supreme Court Justice Antonin Scalia, has made it a target of the left. A group called UnKoch My Campus used the Freedom of Information Act  to obtain emails and copies of gift agreements purporting to show undue influence by the conservative/libertarian Charles Koch Foundation and the conservative Federalist Society for Law and Public Policy over the appointment of faculty members and creation of programs. The allegations were repeated by the New York Times and Washington Post. GMU President Angel Cabrera has ordered an inquiry into the terms of the gifts, but he has described only two such deals as “problematic” and noted that both have expired.

UnKoch My Campus expressed shock — shock! — at evidence it uncovered showing that Dean Butler had communicated extensively with the wealthy conservative donors. Butler offers no apologies. As dean of the law school, he is the fund-raiser in chief, which makes him the schmoozer in chief. He is proud of the school’s success in funding programs that elevate its profile in the legal community.

I had the opportunity to visit Butler earlier this month. School was out for the summer, and the dean greeted me clad in shorts, sockless, tassled loafers, and an untucked button-down shirt. He came across as affable, enthusiastic, and passionate — but not dogmatic — about conservative causes. While Scalia’s law professors are mostly conservative, he noted that there are “a couple of Democrats” on the faculty. Perhaps more importantly, students feel free to express liberal views. “We don’t muzzle anybody here.”

Unsurprisingly for a free-market conservative, Butler touts the “marketplace of ideas,” and he sees the Scalia School playing an important role in that marketplace.

Founded in 1979, the law school entered its modern incarnation in 1986 when Henry G. Manne became dean at the recommendation of GMU’s two Nobel Prize winners, James M. Buchanan and Vernon Smith. Manne was a proponent of the Law and Economics school of thought pioneered by economist Ronald Coase and legal scholar Richard Posner. The breakthrough idea was that the discipline of economics could provide insights into not only areas of business law such as antitrust compliance but torts, property, contracts, domestic relations, procedure, even constitutional law.

In a 1994 essay Manne recounted how Law and Economics took root at GMU:

Much of the credit for what occurred at GMU belongs to the University President, Dr. George W. Johnson. He repeatedly said that he did not want “just another good law school.” Rather, consistent with his entire style at this new, innovative and burgeoning university, he wanted to be at the cutting edge, to set new models for other universities, and to take chances in order to move George Mason’s reputation along in a hurry. When he heard in some detail my idea for a law school, he is reported to have said to an associate, “whether Henry Manne comes here or not, that is the kind of law school we want.”

A student of Manne’s, Butler has built on the Law and Economics foundation. He has fought to keep a bigger share of the law school’s tuition revenue for the law school itself. He has raised money for massive renovations of the Arlington campus, including the digitization of much of the law library to replace oppressive stacks of books with light-imbued study and meeting space. He orchestrated the school’s name change to honor Scalia, a leading light of conservative legal thought. And he has increased outside fund raising. Most of the money goes to support six centers and institutes.

  • The Law and Economics Center provides classroom sessions where judges, prosecutors and staff learn principles of economics and how they apply to legal issues. The goal is to assist legal and public-policy decision making.
  • The Liberty and Law Center is dedicated to advancing freedom of speech, freedom of religion, individual rights, and the rule of law.  Projects include training students who support these principles to become public interest lawyers.
  • The Center for the Study of the Administrative State. The center holds roundtable discussions and policy conferences on topics ranging from judicial deference to due process to financial and environmental regulation.
  • The Center for Protection of Intellectual Property focuses on controversies surrounding patents, copyrights, and other intellectual property rights. The underlying premise is that strong property rights can foster innovation, creativity, and a vibrant economy.
  • The Global Antitrust Institute, which applies sound economic analysis to the enforcement of competition, offers training to foreign judges and competition enforcers from around the world.
  • The National Security Institute promotes public policy that incorporates “a realistic assessment of the threats facing our nation alongside a deep and enduring commitment to safeguarding constitutional liberties.”

“We’re an ideas factory, and we retail them,” says Butler. However, he acknowledges, conservative and libertarian ideas don’t exist in a vacuum — they interplay with liberal and leftist ideas. “We go out of our way to have intellectual diversity in the room. We want people on the other side.”

The notion of enforcing intellectual conformity is anathema, says Butler. “Thousands of judges would not have come our programs if we didn’t provide a balanced approach.”

The Scalia School’s defenders view criticism of the law school as part of a broader leftist assault on intellectual diversity in academia, an effort to silence one of the few centers of conservative legal thought. Contrary to how the gifts are portrayed in the New York Times, conservative donors aren’t trying to buy influence over the law school’s hiring, curricula or anything else.

“The reporters have the causation exactly backwards,” writes John O. McGinnis, a Northwestern University professor of constitutional law. The gifts are “not designed to elicit conservative thought from the school. Instead the school’s thoughtful conservatism elicited the gift. Those who support liberty, as defined in classical liberalism, want to help an effective institution that does not currently follow the academic orthodoxy arrayed against it.”

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8 responses to “The Scalia School: a Bastion of Conservative Thought”

  1. LarrytheG Avatar

    I actually do support this effort. It will stand or fall based on it’s reputation and merits and it will be interesting to see if there is a real demand for that kind of education!

    AND.. I would LOVE to see GM and the Scalia Law School become a BASTION of “free speech”.. inviting all the scorned who have been rejected at other institutions!

    I’m serious here. No tongue-in-cheek!

    Now.. I have some doubts… but that’s not a big deal.. what’s important is that
    Conservatives and Libertarians get more ilk they can call their own!

  2. Steve Haner Avatar
    Steve Haner

    There is an assumption behind all this that students are just mental mush and will pick up and replicate the ideology of their professors like automatons, which is unfair to most of them and highly unfair to the above-average undergraduates who get into a good law school. The vast majority of what the schools teach is also similar, because at the end of the day the students need to pass the bar in some state and practice in its courts. The conservative point of view probably matters more on the economics component of the GMU programs than on the law classes.

    Obviously however there are ideologues who want to be sure that their fellow ideologues dominate faculties, and that’s where we find ourselves. They certainly have infected some percentage of their students over the years and turned them into advocates. I think GMU’s focus on business and economics has naturally attracted a different point of view, and now it is successfully building on the market niche. I’m sure it will stand its ground and get past this kerfuffle. All of the schools have major donors, and many major donors have agendas.

    I also question that clear demarcation, liberal vs. conservative, and wonder if that is reasonable, given most of us see plenty of gray in plenty of issues. And lawyers are trained to find and exploit that gray!

    1. I’ve read of a study that shows that professors have limited power to shape the ideological inclinations of their students. There is an effect, but it is supposedly a small one. Maybe that’s true, maybe not. I think teaching bias can have an effect if students are denied exposure to entire fields of thought. How many college graduates are ever exposed to the thinking of conservative/libertarian writers? How many realize that there is any other way of examining the issues? If you think the other side is totally bereft of ideas, no wonder you think they’re motivated by bigotry and racism. Not healthy.

      1. Reed Fawell 3rd Avatar
        Reed Fawell 3rd

        “I’ve read of a study that shows that professors have limited power to shape the ideological inclinations of their students. There is an effect, but it is supposedly a small one. Maybe that’s true, maybe not.”

        No, that study is absolute nonsense. To believe that bull is to believe that the Marine Corps cannot make Marines. Or that Karl Marx, Hitler and Mao had little influence on how Russians, German’s and China-men have behaved over the past 150 years. Or that men can’t be mentors. It’s to deny human history and human nature in one study from Academia, which unfortunately the norm today instead of the exception. Sure proof of today’s massive corruption in our colleges and universities. And we dummies take it seriously!

      2. djrippert Avatar

        I’d rather have my ideological inclinations formed by the first 2,000 people in the phone book than by the faculty of any law school.

  3. LarrytheG Avatar

    Well … Steve had me going there for a minute and I do think his observations are not unreasonable… but we also should note that one of the biggest and most important political conundrums of our time that drives POTUS elections is WHO will be appointed to SCOTUS and other high courts US District and Appeals and whether or not they are of a Conservative or Liberal mindset!

  4. djrippert Avatar

    BYU, Alabama, GMU, Notre Dame – ok, that makes sense. But Pepperdine? I would not have guessed that.

  5. Steve Haner Avatar
    Steve Haner

    Larry, sure it matters when you pick Supremes, at the state or federal level, but it sure doesn’t matter when you hire a criminal defense lawyer or need a business contract drafted. Was Thurgood Marshall’s liberalism the result of his college education or perhaps a few other forces in his life? The country was founded by not liberals, but violent radical lawyers – Jefferson, Adams, Henry! It’s too pat to draw a straight line from law school professors to the bench or the legislature 30 years later. And thanks to schools like GMU, the overwhelming dominance of Harvard, Yale and a small group of other law schools is rapidly being diluted.

    What was that old line? If you aren’t at least a little liberal in your early years you don’t have a heart? 🙂

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