Schools for Misrule
Legal Academia and an Overlawyered America
by Walter Olson
Encounter, 296 pp., $25.95
Following Judge Roger Vinson’s decision that Obamacare exceeded the powers granted to Congress and was therefore void, the White House released a statement denouncing the ruling as “odd and unconventional.” But why should it be considered odd and unconventional for a federal judge to read the language of the Constitution, consider its history, and then rule that a law cannot be enforced because Congress had no authority to enact it? Isn’t that standard procedure?
After reading Schools for Misrule you will understand perfectly. At most law schools—and emphatically at elite ones such as Obama’s Harvard—students are immersed in a bath of statist theories that rationalize ever-expanding government control over nearly every aspect of life. They hear that social progress depends on politicians and judges dictating what people must do (such as purchasing federally approved health insurance) and must not do (such as using incandescent light bulbs). They learn that the concepts of limited government and federalism are outmoded antiques that merely defend unjust privilege. So to many law school graduates, Judge Vinson’s opinion is odd and unconventional: It runs contrary to everything they were taught about the Constitution and how judges should interpret it.
Walter Olson’s previous books show the malign effects of the legal profession on everyday Americans. Schools for Misrule explains how most of the damaging ideas that lawyers, politicians, and judges are eager to fasten upon society originate in our law schools. Decades ago, lawyers who went to law school (and many did not—more on that later) received a no-nonsense education in the bedrock knowledge for their careers: courses in property, contracts, torts, and civil procedure along with practice in legal research and writing. Now, the legal curriculum relegates some of that bedrock to optional status—Olson notes, for example, that Yale has proudly brushed property into the elective pile—and is loaded with ideologically slanted courses such as Climate Change Justice, Social Disparities in Health, and Social Justice Lawyering.
For students who majored in tendentious pseudo-disciplines in college, such courses are irresistible. Moreover, Olson shows, law schools go to considerable lengths to recruit students who are inclined toward careers in “public interest law.” Backed with funding from George Soros’s Open Society Institute, the American Association of Law Schools launched its Equal Justice Project in 2000. Its objective was to encourage activism among law students. Toward that end, many schools now have tuition-forgiveness programs that subsidize students who “follow their conscience” into public interest lawyering, or set aside seats in each class for students who pledge to go into such careers. Activist students can team up with activist professors to foment change by working in the numerous clinics and programs law schools have established. Name almost any leftist cause today—feminism, environmentalism, homelessness, poverty, and so forth—and law schools have centers where faculty and students are busy as bees concocting lawsuits.
Consider, for example, the prodigious costs that have been forced on New York City by law school-bred homeless activists. In the early 1980s the city embarked on an ill-conceived program of constructing public housing to eliminate homelessness. New York soon found its program spinning out of control as public interest lawyers prevailed upon a friendly judge to declare a “right to shelter” and rule that New York was not doing enough to give effect to that “right.” Even though state law required that the homeless be placed in dwellings within 48 hours, the judge declared that the city must pay a penalty unless it placed them within 24 hours. And although city regulations allowed officials to evict people for misconduct, the judge declared them void.
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.