William F. Buckley once quipped that he’d rather be ruled by the first 100 names in the Boston phone book than the Harvard faculty. Well, if Walter Olson’s to be believed, we’re already being ruled by the Harvard faculty – or at least Harvard’s law school faculty – it’s just that most of us don’t know it.
Olson, a senior fellow at the Cato Institute, is the author of Overlawyered.com, one of the oldest and most heavily trafficked legal blogs, and a prominent proponent of tort reform. I’ve been critical of some of his work in the past – in particular his lack of positive proposals for compensating the victims of mass torts – while supportive of some of the newer elements of his legal program, such as advocating for the reform of existing copyright and patent law and his criticisms of certain overzealous federal criminal prosecutions.
Olson’s latest work, “Schools For Misrule: Legal Academia and an Overlawyered America” has just been published by Encounter books and I had the opportunity to read an advance copy a few weeks ago. In “Misrule,” Olson turns his sights from the tangles of legal practice to what he regards as the seedbed of pernicious legal ideas – the American law school. Olson believes the ideas that permeate the legal academy should concern us all because:
“Bad ideas in the law schools have a way of not remaining abstract. They tend to mature, if that is the right word, into bad real-life proposals. Bad ideas in university French departments are of self-limiting importance, given that people on the outside are likely to go on speaking French in the usual way. Bad law can take away your liberty, your property, or your family.”
Whatever else you might think about “Schools For Misrule,” Olson is surely right in arguing that the ideas incubated in law schools can have a lot of real world significance. At least in my experience, Olson is also correct in arguing that law school faculty members are overwhelmingly liberal and law school instruction has a left-leaning bias. I part company with Olson on the issue of whether these facts should be cause for alarm, but, whether you agree with Olson’s conclusions or not, there is a lot that you can learn from “Schools For Misrule.”
For starters, Olson’s new work is a valuable corrective for those of us who tend to believe that law school pedagogy has remained essentially frozen in amber since Christopher Columbus Langdell instituted the use of the Socratic method and case study at Harvard in the late nineteenth century. “Schools For Misrule” points up exactly how much legal education has changed since Langdell’s time.
One of the most important innovations in legal education that Olson chronicles is the birth of the law school legal clinic in the late sixties. According to Olson, the advent of clinical legal education served as a springboard for the launching of a left-wing agenda in America’s law schools.
While I was aware of the fact that law school legal aid clinics only became commonplace in the 1960s, I was surprised by how quickly they sprouted up and the role that philanthropy dollars played in their growth. According to Olson, the number of law schools awarding academic credit for legal clinic work grew from a dozen in 1968 to one hundred and twenty five by 1972. Perhaps the major engine behind this expansion was the largesse of the Ford Foundation’s Council on Legal Education for Professional Responsibility (CLEPR).
The impetus behind the Ford Foundation’s donations to law school legal clinics was unabashedly progressive-minded: the CLEPR’s stated goal was “developing the social conscience of law students and professors.” And the American Bar Association threw its weight behind clinical legal education by mandating that clinical faculty at ABA-accredited law schools have full faculty voting rights and by threatening to revoke the accreditation of schools that failed to offer clinical academic credits.
Olson says, “Whatever it may have done in the outside world, the rise of clinical law has surely exerted a leftward influence within the law school itself, as to both general atmosphere and faculty governance.” He also recites a catalogue of unpopular left wing causes that have been embraced by law school legal clinics and the far-reaching courtroom victories that law school legal clinics have recorded in every field from homeless rights to environmental law.
In addition to illustrating how the practical work of law school legal clinics can be felt in Americans’ everyday lives, Olson also highlights how even the ethereal world of abstract legal theory eventually makes itself felt in a concrete way in many areas of life. Olson does a good job, for example, in connecting up the 1964 publication of law professor Charles Reich’s journal article “The New Property,” with later Warren Court decisions recognizing the Due Process rights of welfare recipients and the expansion of the welfare state.
Olson also relates the fascinating tale of how a 1971 article published in the Maine Law Review, and co-authored by law student Francis O’Toole, provided the blueprint for successful lawsuits brought by Native Americans to recover tribal lands. O’Toole and his co-author came up with the argument that many land owners in the eastern US did not hold valid title to their land because the early Anglo-American settlers violated a dusty federal statute – the Non-Intercourse Act of 1790 – which required that the settlement or acquisition of Indian lands meet with the case-by-case approval of the federal government. I was familiar with the Supreme Court’s Oneida I and Oneida II opinions, but was oblivious to the backstory involving the law student in Maine, which seems ripe material for a screenplay.
“School For Misrule” doubles as a polemic and fascinating history of the legal academy, but it strikes me as just that – history – and not a narrative of the present day. Olson himself quotes the 2007 declaration of Dennis Jacobs, the chief judge of the Second Circuit Court of Appeals, that, “I haven’t opened up a law review in years. No one speaks of them. No one relies on them.” The suggestion is that judges and practicing lawyers no longer read law reviews because law reviews have ceased to be relevant to their work; instead of publishing articles on the nuts-and-bolts of law, law reviews have become dominated by various postmodern takes on the law that have no utility for the practical-minded members of the bench and the bar.
Olson also touches upon the 2006 Supreme Court decision in Rumsfeld v. FAIR – a case about law schools’ freedom to keep military recruiters from conducting interviews on their campus – a cause that was championed by many law school professors and law students because of the military’s discriminatory “Don’t Ask, Don’t Tell” policy. The law students and law professors who made up FAIR lost 9-0 before the Supreme Court. As Olson notes, “For all their florid display of talent, the schools couldn’t muster a single vote for their position from the Court’s liberal wing – not from John Paul Stevens, not from David Souter, not from Ruth Bader Ginsburg, not from Stephen Breyer. The bounds of [the legal academy’s influence], it seemed, stopped at the hothouse walls.”
The highwater mark of the legal academy’s influence appears to have coincided with the highwater mark of social activism in the 1960s and 70s and to have receded quite a bit since then. When President Obama would rather listen to a lecture on President Regan than FDR, you get an idea of precisely how far the pendulum has swung in the opposite direction.
Today, while there are many legal clinics that continue to advocate specificially for liberal causes, perhaps the preeminent law school clinic is Stanford Law School’s Supreme Court Litigation Clinic (SCLC). It is hard to pigeonhole a lot of the work of the clinic as either liberal or conservative; perhaps the best way to characterize it is as highly-effective Supreme Court advocacy. Perhaps the SCLC’s signal achievements in recent years have been their victories in Crawford v. Washington (2004), Washington v. Davis (2006) and Melendez-Diaz v. Massachusetts (2009), decisions that expanded the rights of criminal defendants to cross-examine the witnesses against them. In that sense, these opinions might be thought to be “liberal” by giving criminal defendants more rights. But Justices Scalia and Thomas and other members of the Court’s conservative wing have sided with the defendants in these cases against liberal colleagues such as Justice Breyer. And these opinions are held in contempt by some feminist legal academics because the legal rules they helped establish have primarily inured to the benefit of domestic batterers whose victims do not testify at trial.
That is part of the problem with assuming that law schools are ever-drifting leftward: the traditional taxonomy of liberal and conservative breaks down when you start to deal with many fine-grain legal issues. For example, many tort reformers like Olson favor expanding the reach of arbitration clauses and capping punitive damages. In this, they have found a close ally in a liberal jurist like Breyer, who has authored many key opinions in these areas. Meanwhile conservative stalwarts like Scalia and Thomas have stridently opposed putting limits on punitive damages and have been less enthusiastic about the Court’s expansive reading of the Federal Arbitration Act.
Olson acknowledges how fractured the political spectrum can become in the courtroom, and the quarrels that can crop up between different stripes of progressives, but gives short shrift to the diversity of political views that can be labeled “liberal” or “conservative” or “libertarian.”
Olson urges law professors to return to basics, to teach students what they will need to know for practice and to turn their backs on the academic vogues. I think this is perhaps some sound advice and may be a prescription for liberal law professors to follow if they want to regain the heights of influence that they once enjoyed. There are at least two law professors – Tim Wu and Elizabeth Warren (who is now in the Obama administration) – who possess rock star cachet in progressive circles and whose work is not in any way connected with the fashionable postmodernism that Olson derides. The work of Wu, perhaps the foremost exponent of “network neutrality,” is informed by a deep knowledge of the technical side of telecommunications and telecom history but also by an encyclopedic knowledge of telecom regulatory law that only an old-fashioned lawyer would possess. The work of Warren, who now serves in the Consumer Financial Protection Bureau, draws upon her knowledge of personal bankruptcy law and focuses on pocketbook issues such as household indebtedness and the shell games of creditors.
Olson devotes a chapter to some of the lucrative sideline consulting that law professors often do, with special attention paid to the astronomical sums that certain legal ethics professors can earn for writing opinions on the conflicts of interest that law firms face. But one development in legal education that challenges the idea of law schools focusing on training lawyers-as-technicians that is largely passed over by Olson was the Watergate era development of professional ethics training. Troubled by the number of lawyers complicit in the Watergate cover-up, law schools redoubled their focus on teaching professional ethics. Many states added an additional exam besides the bar exam – a professional ethics exam – that aspiring lawyers had to pass to be admitted to the bar.
Regardless of your opinions on the state of the law school, few within the academy could reject his conclusion that:
“….training [law] students in the skills and knowledge they will need in legal practice is no mean function and no small challenge. Training future lawyers to respect the legitimate interests of their future clients, and to recognize the dignity of the kind of everyday legal work that the world will always need, is not half bad either. Training them to do all this in an ethically grounded, appropriately humble way is potentially noblest of all. We neither need nor want more philosopher-monarchs. But we could use more good lawyers.”