The Volokh Conspiracy

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Volokh Conspiracy

Correcting Simkovic on the Scalia Law School

Prof. Simkovic makes several incorrect assertions and insinuations about George Mason's law school


Over at Leiter, Professor Michael Simkovic has a lengthy post about the recent controversy over lapsed funding agreements between the Koch Foundation and George Mason's Economics Department. Here's a link to Econ's side of the story.

My interest here is in Simkovic's assertions and insinuations about the law school, which was not involved in any of the relevant funding agreeements.


Much of the controversy relates to a libertarian/free-market embedded think tank at George Mason, The Mercatus Center, which provides supplemental compensation and resources to GMU's economics faculty and some law faculty members, as well as opportunities to produce commissioned research on timely policy issues….working at GMU may not have made sense financially for economists or law professors who were unlikely to obtain Mercatus compensation supplements…. Without supplemental compensation from Mercatus, GMU faculty compensation appears to be uncompetitive with comparable institutions. FN For example, base salary from state sources for prominent senior faculty at GMU's law school appears to be relatively low compared to compensation of faculty at similar seniority levels at similarly ranked institutions in similarly high-cost of living areas…

To my knowledge, only two members of the law faculty are affiliated with Mercatus, Todd Zywicki and J.W. Verrett, though I may be missing someone. Mercatus had nothing to do with either of them joining the faculty. In my many years serving on the law school's appointments committee, Mercatus has never come up as a possible source of funding to help lure faculty. Yes, our salaries our relatively low, especially considering that our faculty scholarly influence ranks up there with law schools like University of Texas, whose salary scale dwarfs ours. Unfortunately, there is no libertarian sugar daddy making up the difference.*

Simkovic: "Given the large donations the Kochs have made to George Mason's law school and economics departments over the years… the Kochs may not have needed board seats to exercise influence."

To my knowledge, other than the $10 milion naming gift the Koch Foundation gave to the law school in 2016, the Kochs have never given money directly to the law school, though, along with many other donors, they have provided funds for programming run by the Law and Economics Center, funds that do not go to our instructional budget or to faculty salaries.


Conservative and libertarian predominance at George Mason's economics department and law school appears to have fostered a distinctive, rough-and-tumble culture…. In correspondences with one GMU law professor about my last post, which critiqued techniques used by conservative activists to build support for regulating universities, a GMU professor compared my admonishments to accusations of child abuse, domestic violence, and neo-Nazism.

I was the faculty member in question. In correspondence initiated by Simkovic, I suggested that he correct an earlier post insinuating that allegations for racism against South Texas lawprof Josh Blackman and Cornell lawprof had merit. He declined, suggesting that such allegations weren't a big deal. I suggested that insinuations of racism in academia can be as damaging to one's reputation as insinuations of other bad behavior.

Simkovic's post does raise an interesting question: how has the Scalia Law School managed to recruit and retain a world-class faculty when we are affiliated with a respectable university of modest financial means, and when the law school has long been underfunded relative to its peers, including for faculty salary?

Remarks from professional colleagues over the years suggest that there is a widespread belief that we have had money pouring in from libertarian and conservative sources. We haven't. It's a combination of Moneyball hiring, and that ideological discrimination in faculty hiring means that we can afford to be uncompetitive. Over the years, many off my liberal former colleagues have been hired away by wealthier schools, and a significant number of offers we made to liberal scholars were turned down in favor of more lucrative offers from similarly-ranked schools. Somehow, similar dynamics have been much less common with our conservative and libertarian faculty.

Simkovic, by contrast, seems to be under the impression that the legal academy is skewed to the right, suggesting that "Ideologically-motivated funding only serves to push the median member of … law faculties further to the right (emphasis supplied)." Uh, what? Maybe from the Venezuelan perspective?

*Disclosure: I wrote a paper for Mercatus on Medicare reform and freedom of contract. I was paid $4,500 for a substantial piece of academic writing, hardly enough, over a 23 year legal career, to affect my decision where to teach (and I don't see why Mercatus wouldn't have been interested in the same paper if I taught elsewhere), and for that matter not nearly enough to get me to write about something that I wouldn't otherwise have an interest in.