The liberal paper chase

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Walter Olson thinks that American law schools are the origin of some very bad ideas, in something like the way bats are said to be the reservoir of certain nasty viruses in Africa: the germs of pernicious concepts incubate there in relative obscurity between epidemics, erupting occasionally to spread destruction and misery. Sadly, Olson is not entirely wrong.

Schools for Misrule is a broad complaint against American law schools, especially perhaps the Yale Law School, alleging that they promulgate terrible jurisprudence. Among Olson’s particular targets is institutional reform litigation, in which judges govern school systems, prisons, and welfare programs by sweeping injunction, a job at which they have proven just as maladroit as the corrupt politicians they displaced. Also up for hard knocks from Olson is international human rights litigation, which threatens to haul American policy makers before international criminal tribunals. Olson does an especially good job tracing the expansion of tort liability principles, which he ascribes to the work of legal scholars whose theories lay the basis for ever-expanding liability.

“Bad ideas in the law schools have a way of not remaining abstract,” Olson says. “They tend to mature, if that is the right word, into bad real-life proposals.”

Olson’s indictment of law schools is a little harsh, however, even if one shares his dislike for grand judicial social engineering schemes and self-congratulatory political elites. Are law schools really the origin of these misfortunes, or are they just no more immune than anywhere else to the fevers that periodically afflict the body politic?

He does have an account of why law schools seem to be behind some of the more appalling political projects of recent decades, but it is rather sketchy. In his conclusion, he adopts Irving Kristol’s concept of the “new class” of idea workers, who flock to government, academia, and media because those are the sectors where idea manipulation gets done. In this view, it is no accident, as the Marxists like to say, that most of the new class’s ideas would have the effect of making this class richer and more powerful. Law professors are, according to Olson, the very picture of new class operatives, idea creators who tend to do well when their ideas catch on.

Olson suggests that examples of this unsettling phenomenon include environmental law professors who advocate more environmental regulation and litigation (which makes their jobs more important), human rights experts who argue that the jurisdiction international tribunals should be greatly expanded (ditto), and torts professors who argue for just the sort of theories that plaintiffs’ lawyers love (leading to generous donations to their favored law schools). “Left-tilting” foundations chip in, funding clinical programs designed not so much to train lawyers as to litigate for favored liberal causes.

He doubtless has a point. Any law professor can think of colleagues he disapproves of because their scholarship, their advocacy, and how they paid for the new Mercedes are all tightly wrapped together. (That package is invariably slathered over with an attitude that combines financial with moral superiority, infuriating those of us with purer scholarship and older vehicles.) Moreover, private foundations can and sometimes do colonize clinical legal education. Law professors and judges are probably more prone to hubris than even most academics. More broadly, in the United States, law schools and especially the elite national law schools are critical training grounds and idea factories that, as many interests in society have figured out, present ideal venues for cultivating influence.

It is not clear, however, whether law schools are responsible for the abuses Olson identifies or merely reflect their professional and political environment. Law schools also should get credit for incubating intellectual movements that have proven powerful tonics for the very problems Olson complains about. The law and economics movement, for example, which evolved at the University of Chicago law school, has deeply undercut theories that everybody should be liable for everything and has increased respect for common-law rules and adjudication. Public choice theory, sprouting in part from the law school at George Mason University, and now widely influential, has made the idea of benevolent judge-reformers seem hopelessly naïve. Harvard Law School hired Jack Goldsmith ’89JD, outspoken critic of the grander claims of international human rights law. Even Berkeley has not seen fit to extradite torture memo author and law professor John Yoo ’92JD to the mercies of his many adamant critics.

Perhaps most significantly, the idea that our Constitution should be interpreted according to its original meaning—an eccentric right-wing academic claim in the 1980s that helped brand Supreme Court nominee and former Yale Law professor Robert Bork “out of the mainstream”—now appears to be nearly the consensus view, with young liberal and conservative originalists debating its implications more than the method itself. At her confirmation hearing, Supreme Court justice and former Harvard Law dean Elena Kagan observed, “We are all originalists,” and she was exaggerating only a little. In 1980, we certainly were not. While American law schools are still overwhelmingly liberal in their political atmosphere, they evidently produce ideas and people that resonate on both left and right. Perhaps some of the good ideas and people law schools have produced would be less urgently needed if law schools could refrain from producing so many bad ones, but they at least deserve credit for doing both.

Olson’s book, if one-sided, is nevertheless well worth reading. His histories of liability expansion, the role of wealthy private foundations, and international human rights law activism, as well as the ever potentially corrupting influence of money, amount to a sobering crash course in how bad things can happen to good schools and countries. Olson writes with a humorous touch and wears his considerable erudition about the history of legal education lightly. Anyone interested in how law schools influence our broader political debates should read this book, even if it is not the only book on this topic one should read.