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Tuesday, February 20, 2007

Fed Soc symposium, and diversity

The Federalist Society's annual Student Symposium -- on the theme, "Law & Morality" -- is this week (Feb. 23-24), at Northwestern University School of Law in Chicago.  Here's the web page, with program and registration information.  (I'm moderating, and am very much looking forward to, a panel discussion, "What Is Morality?", in which Michael Perry, Randy Barnett, Robert Baker, and John Burns are participating.)

Looking over the program, I'm struck by how "diverse" the program is.  That is -- putting aside the keynote speakers -- each of the four panels seems scrupulously "balanced."  Views that are contrary to, or in tension with, or that challenge, those positions typically associated with the Federalist Society are not just represented, in a token-type way, but powerfully and fairly represented.

Here, by way of comparison, is a link to the line-up of the American Constitution Society's last conference.  (Of course, there might be an "apples and oranges" problem comparing the large ACS national conference to the smaller Federalist Society Student Symposium.  Here is the program for the Federalist Society's national conference.)  And, I doubt a link is necessary to support the claim that both the ACS and the Fed. Soc. put on events that are more balanced and diverse than the typical AALS program. 

In any event, all this raises, for me, a question:  Is this "balance" a good thing?  For law students' education and development?  For the public conversation about law and the Constitution?  For the political movements that one might associate with the Federalist Society (or the American Constitution Society)?  I am inclined to think the answer is "yes," but I wonder if I'm being too quick?  Are there downsides and dangers?

Posted by Rick Garnett on February 20, 2007 at 12:21 PM in Life of Law Schools | Permalink


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Tracked on Feb 20, 2007 2:14:56 PM


It depends on the purpose of the event, right? Balance is an asset if you want to explore ideas; balance is a liability if you want to rally the troops.

Posted by: Orin Kerr | Feb 20, 2007 2:15:04 PM

It depends on the purpose of the event, right? Balance is an asset if you want to explore ideas; balance is a liability if you want to rally the troops.

Posted by: Orin Kerr | Feb 20, 2007 2:16:22 PM

Rick, it seems in some sense like a surprising question for you to ask so closely on the heels of your post on the university. As Orin suggests, the answer surely is, it depends. While I personally would prefer a balance-oriented approach, I suppose it depends on the occasion and on one's sense of the mission and purpose of the group. To the extent that either or both groups disturb me, it is more for the degree to which others -- employers, in particular, but also critics -- may use membership in one or the other organization as a proxy for assumptions about the ideological purity of individual members, and less for the lineup of the speakers, although I think the FedSoc is to be commended for organizing debates rather than rallies. What I really would like to see is lots of instances of students or faculty joining and/or participating in *both* groups, both because they both have potential value and to confound those ideological assumptions I referred to.

Posted by: Paul Horwitz | Feb 20, 2007 2:41:26 PM

Orin, you are probably right. And so maybe the question is simply about the purpose of these conferences (or, of the AALS panels). Paul, I think this post, and the one about universities, are kind of coming "from the same place", actually. In both posts, I'm wondering about the balance between "taking stands" and "exploring ideas"; in each context (Fed Soc or "the university"), we confront questions about the expressive-identity of an institution / enterprise.

Speaking of confounding ideological assumptions, I enjoyed the line-up in today's punitive-damages decision from the Court!

Posted by: Rick Garnett | Feb 20, 2007 3:32:11 PM

"I enjoyed the line-up in today's punitive-damages decision from the Court!"

Really, Rick? It didn't trouble you at all that Roberts and Alito would so uncritically sign on to a made-from-whole-cloth assertion of a substantive due process right?

(Me, I have nothing against SPD generally -- but I think this Breyer/Souter notion that what juries do is not law-like is very unfortunate.)

Posted by: Marty Lederman | Feb 20, 2007 3:43:03 PM

Hi Marty -- I didn't mean to say anything about the merits of the decision, or about any particular justices' votes, only that the line-up (in Paul's words) "confounds" the ideological assumptions that many bring to discussions about the Court. And, I enjoy such line-ups. For what it's worth -- and putting aside any arguments about whether punitive damages should be authorized, and when, etc., etc. -- my view on the matter is probably similar to yours.

Posted by: Rick Garnett | Feb 20, 2007 4:26:49 PM

For those who don't know the members of the "What is Morality?" panel, what is diverse about them? Is there a secularist, a welfarist, a Kantian, a virtue theorist, etc., among them? Or is the diversity mentioned a matter of left-right politics?

Posted by: anon | Feb 20, 2007 6:54:41 PM

Marty's post raises an interesting question about the line-up: why would two judges who had both clearly toed the line on SDP in their appointments below (Alito's opinions on the 3d Circuit were famous for their "shocks the conscience +" standard) all of a sudden go whole hog for this SDP right? Newly liberated from the yolk of precedent? Shameless result-orientedness, here today but gone tomorrow on SDP? Tying this back into "balance," I'll say I feel no personal duty whatsoever to try to justify these two justices' votes. Breyer, on the other hand, is apparently not making the connection between the jury and active liberty . . . .

Posted by: jamie Colburn | Feb 20, 2007 10:54:12 PM

I must say I'm more curious about why these panalist are asked to talk about "what is morality"? It's obviously a hard question, and I don't know all the panalist. But, good constitutional theorists they may be, why ask Barnett and Perry (as apposed to someone who actually works on this topic) this question?

Posted by: Matt | Feb 21, 2007 8:55:51 AM

In partial answer to Matt's question, my guess is that most of the speakers on that particular panel will be addressing the question "What is morality?" in the larger context of the "Law and Morality" umbrella. That is, the question of what morality is in the context of the various interactions of morality and law. And several of the speakers have written about and addressed just that question.

This response, though, doesn't really seem to get at what is perhaps your underlying question, which may be gesturing in the direction of a claim that the only people one should be listening to on this kind of question are philosophers who work in ethics or normative theory. If that's the argument, then, for what it's worth, it probably would have been worthwhile to include such a person, or people, on the panel. To the extent you are making a more general polemical point, I disagree with it, but don't see any point in persuading you otherwise in a forum such as this one.

Posted by: md | Feb 21, 2007 11:23:57 AM

Just a comment, but I don't think that law and morality is an issue where one could rally the troops at a federalist society convention. The group is composed of both traditionalist conservatives and hawkish libertarians, who are diametrically opposed in their views on the issue. As such, I'd think that ideologically balanced panels are entirely consistent with the diverse views of their membership, and it also speaks well of the society for diving headfirst into an issue that divides their membership. They could have very easily chosen an issue on which most of their membership is in agreement (E.G. "Is Living Constitutionalism a Good Thing?").

Posted by: Ubertrout | Feb 21, 2007 1:14:36 PM

MD- I'm not _sure_ that some philosopher should have been put on the panel, and maybe Barnett and Perry (or the others, who might have sterling qualifications to talk on the subject- I just don't know them) will do a good job. It just seems funny to me to pick these two, since they don't seem to have special expertise in the area. Would they make a panel on some specific legal topic and get panelists who have big names but don't write in that area? I'm skeptical. Maybe Perry and Barnett are qualified to talk about what _counts_ as "morality" from a legal perspective, but that's a bit different question.

Posted by: Matt | Feb 21, 2007 11:21:33 PM

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