The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I had resolved not to blog about Nancy MacLean's disaster-of-a-book "Democracy in Chains" again, because the book truly doesn't deserve the publicity, but I wanted to correct a record in this post, and will be posting an important guest post on a related topic soon.
I think the most devastating review of "Democracy in Chains" is the one in Reason magazine by Brian Doherty, author of a great, and, importantly, accurate book on the history of American libertarianism. Nevertheless, because many liberal observers are unwilling to credit reviews from what some are calling the "libertarian team," it's important that some liberal scholars have spoken up as well. Most recently, Henry Farrell and Steven Teles published a strong essay on "Democracy in Chains" in the latest Boston Review.
Farrell and Teles get to the essence of the issue, that MacLean makes extraordinary claims for which she presents no evidence. They note, "while we have political commitments, we are scholars. That means that our core priority is to get the facts right, even when that is politically inconvenient." (This is particularly welcome coming from Farrell; several years back, when I pointed out on this blog that his co-blogger had blatantly lied about me, he chimed into the comments to defend the lie.)
While overall it's a very good essay, I wanted to take issue with the following assertion by Farrell and Teles:
For example, David Bernstein, in two posts, uses problems in MacLean's sourcing to imply in contradistinction that Henry Manne (the dean who made George Mason University's law school shift its focus to law and economics) was not driven by the desire to set up a conservative legal institution to counterbalance liberalism in the academy, and that the law and economics approach was an ideologically neutral program because it invited Paul Samuelson as well as Milton Friedman to its seminars. As a book that one of us has written discusses at some length, Manne had entertained the ambition of creating a truly free market legal institution long before he came to George Mason, while the addition of Samuelson to law and economics seminars was an effort to provide the perception of ideological diversity for a program whose primary mission was to undermine support for the activist state.
(1) Manne only hired white males as faculty. This is false.
(2) Manne did not conduct open searches for faculty. This is false.
(3) Manne advertised to donors in a particular brochure that the law school had a "distinct intellectual flavor," that is, a right-wing political flavor. This is false.
(4) Finally, Manne planned for his "law school would stake out a position on the side of corporations against 'consumerism and environmentalism,' two causes that had grown in popularity and influence since the 1970s. His faculty would advocate the superiority of 'unregulated corporate capitalism' and assert, as Manne himself argued in print, that companies needed liberation from 'the distortions created by government intervention.'"
I responded to this last claim in several ways. First, I noted that the sources that MacLean cites don't remotely support these claims. Second, I noted that "the law school has never, ever, attempted to force or encourage its faculty to take a particular position on any given issue or set of issues, and that includes during Manne's rather imperious reign as dean." Finally, I noted that MacLean cited a source that discussed Manne's pre-George Mason tenure as chair of the Law and Economics Center, and that "the reference to LEC programs fails to support MacLean's point, if anything it undermines it," because Manne ensured that these programs were ideologically balanced.
Farrell and Teles apparently don't dispute the falsity of claims 1 to 3, but they argue that "problems in MacLean's sourcing" (a rather polite way to say that her footnotes don't remotely support the text) allowed me to "imply" that Manne didn't entertain the ambition of creating a "truly free market legal institution."
For a review dedicated to showing how another author extrapolates broadly and improperly from at best marginal evidence, this is an extremely sloppy way of describing the controversy. First, MacLean didn't simply suggest that Manne wanted to create a broadly pro-free-market legal institution. She specifically accused him of wanting to create an institution where faculty would take specific positions on particular issues, which of course is contrary to normal notions of academic freedom, is not supported by the evidence she cites and is demonstrably false. Not only has no one at George Mason ever been pressured to take a particular position on any given issue, but during Manne's tenure as dean (and thereafter) the law school hired and offered positions to a significant number of political liberals and moderates, albeit with an interest in law and economics.
Second, I didn't opine one way or another on exactly what Manne did in fact have in mind when he planned over many years to create a law school. I rather emphasized that MacLean made some very broad assertions, completely unsupported by her sources, and which in its specifics were false. When Farrell and Teles extrapolate from this to an "implied" position on a broader debate over the origins of George Mason's law school that I did not in fact address, they are unfortunately engaging in the same sort of "scholarship" for which they rightly criticize MacLean. I'd like to give the authors the benefit of the doubt that this was just an honest misreading not motivated by exactly the sort of animus that they identify as motivating MacLean, but it's kind of hard when Farrell wrote on Twitter, in his most mature, truth-seeking, academic voice, "My opinion of Bernstein is unprintable, and his efforts to suggest that GMU ASSoL (or whatever it's called now) non-ideological is hilarious."