The trouble with lawyers begins in the law schools.
Mar 28, 2011, Vol. 16, No. 27 • By GEORGE LEEF
Where do you suppose judges get the notion that they can act as dictators, overriding written law as they please in pursuit of their egalitarian visions? Law school, naturally! In law school, students routinely hear that great jurists are those who don’t let statutes or precedents keep them from doing whatever seems right. Bad judges are those who merely follow the law when they could be creating new rights and righting old wrongs. Most of our litigation-induced convulsions have their roots in law school. The reparations-for-slavery movement was catalyzed by a Yale law professor’s book. University speech codes were a reaction to a book entitled Words That Wound by then-Stanford professor Mari Matsuda. Lawsuits claiming that huge tracts of land must be returned to Indian tribes were born out of a 1971 article in the Maine Law Review and brought to costly fruition by various Native American law centers.
The most recent explosion of legal activism involves making the United States subject to international law. Olson notes that at a New York University Law School symposium, speakers declared that international law requires nations to guarantee all people the right to health, education, “decent” work, and freedom from “severe social exclusion.” Columbia has created a campaign called “Bring Human Rights Home,” which is intended to generate pressure to make American policies consonant with the collectivist notions of “the international community.” Several law schools have been named as official “monitors” of America’s many “human rights abuses,” such as disciplining minority students at a higher rate than white students and failing to fund abortions with public money. Impossible? All you need is a persistent litigation team (and it’s easy to be persistent when you’re spending other people’s money) and the right judge. Keep in mind that several Supreme Court justices think it appropriate to look at international law in deciding cases involving the U.S. Constitution.
My only quibble with Schools for Misrule is that it doesn’t fully explain why law schools have the extremely prominent position that they do. For most of our history (as Olson correctly states) law schools were not the obligatory pathway into the legal profession. Until the 1920s, most lawyers learned what they needed to know as apprentices working in firms. But then the American Bar Association stepped in and lobbied for laws making a degree from an ABA-accredited law school a prerequisite for taking state bar examinations. While that move was rationalized as “raising standards” and “protection for consumers,” the ABA’s motive was exactly the same as for all special-interest barriers to entry: limiting competition.
Except for the fact that prospective lawyers have no alternative to the needlessly long, expensive law school regime, many students would do their basic training, take the bar exam, and get on with their careers. If that could happen, there would be less money for wild-eyed courses and the profs who teach them. Law schools wouldn’t be such a menace to our liberty and property if they didn’t have a captive market. We should reduce their detrimental impact by letting competition break up the cartel.
George Leef, a graduate of Duke Law School, is director of research at the John W. Pope Center for Higher Education Policy.