Princeton: Princeton University Press, 2008. 358 pp. $35.00 (cloth).
Conservatives today have considerable influence on America’s legal culture. They are welcome on law school faculties at even the most elite institutions, and they man dozens of think tanks, policy centers, and public interest law foundations pressing varying brands of conservative doctrine on the courts—with a degree of success rivaling competing liberal organizations. Shrill leftists allege a “vast right-wing conspiracy,” and senators now begin judicial nomination hearings with hand-wringing warnings about the behind-the-scenes influence of “Federalist Society lawyers.”
The current status of conservatives in the law is, however, a relatively new phenomenon. From the 1930s to the 1970s, liberal or leftist ideas had a nearly monolithic dominance, including overwhelming adherence by faculty and administration at law schools and the American Bar Association, and the support of a bewildering number of lawyers working full-time for private and taxpayer-funded activist institutions advancing “rights” to welfare, attacking private property, pushing environmentalism, and implementing collectivist doctrines in tort law.
Steven Teles’s The Rise of the Conservative Legal Movement documents important elements of this reversal. The book outlines the strategy and tactics conservatives used to counter the left-wing legal culture. Teles, a professor at the University of Maryland School of Public Policy (and currently a visiting lecturer in law at Yale), explains the means by which conservatives gained a hearing for their ideas in academic and legal circles of influence during the past thirty years, providing the richest account in print of the movement’s failures and successes.
The book reflects his political science background. He begins with the premise that “the market for ideas is one in which incumbents have substantial resources with which to frustrate the challenges of competitors, regardless of how compelling their ideas are. In short, while there is a market for ideas, it is one that is institutionally sticky and requires entrepreneurial activity to give it life. For this reason, intellectual history is necessary but not sufficient” (p. 4) to understand the advance of ideas through the culture.
Teles’s approach, therefore, focuses on key conservative legal institutions, particularly the Federalist Society, conservative public interest legal foundations (such as the Institute for Justice), and various “law and economics” programs at elite and not-so-elite law schools. Emphasizing the importance of entrepreneurial activity by those who created these and related institutions and programs, Teles offers a “nuts-and-bolts” view of how the conservative legal movement took shape. Although it has that general approach in common with certain partisan books—such as Clint Bolick’s Unfinished Business: A Civil Rights Strategy for America’s Third Century (a manifesto justifying and, in effect, providing a blueprint for a public interest legal foundation such as the Institute for Justice, which he cofounded) and John Miller’s A Gift of Freedom: How the John M. Olin Foundation Changed America (which tells the history of this foundation, a significant patron of the individuals and organizations discussed by Teles)—Teles’s book is broader in scope than these works.
The earliest conservative attempts to wrest control of the legal establishment were defensive, consisting mainly of establishing conservative public interest legal foundations (PILFs). The PILFs were organized with substantial funding by business and industry—to do battle with left-leaning public interest foundations that were using courts to stymie legislative reforms generated in the early days of the “swing to the right” that took place in American politics in the late 1970s.
Teles traces the successes and failures of these PILFs, which he labels the “first generation.” For instance, he shows that by seeking funding predominantly from business groups, these PILFs were too dependent on narrow interests and subject to controversy. He recounts their realization that businessmen may talk a great deal about the free market, yet abandon their sponsorship of economic liberties litigation when it threatens a subsidy related to their industry. And he shows that most of these PILFs made the mistake of creating foundations with a regional character, which factionalized their fund-raising efforts and often tied them not to a body of abstract principles so much as to narrow sets of issues related to their region.
Teles identifies the Institute for Justice (IJ) and the Center for Individual Rights (CIR) as the preeminent examples of a “second generation” of conservative PILFs, which he believes has overcome early errors. IJ, he notes, embraced idealism as strategy and made a clean break from the defensive posture of its predecessors, which has been a key to its influence.
Apart from pressing its ideas in courts, the movement was successful at fostering relationships among intellectuals, increasing the output and opportunities of its thinkers, and generating interest for conservative legal ideas beyond their own circles. Teles shows that one invaluable force in this effort was the Federalist Society, which invited liberal legal intellectuals to debate conservatives at well-promoted public events, thereby forcing the left to defend its ideas against those of conservative intellectuals. These events began to chip away at the dominance of the left by exposing the weakness of their ideas and promoting the purported doctrinal alternatives of conservatives in tort law, in antitrust, in constitutional interpretation, and so on. In discussing the left’s initial dominance in intellectual circles, Teles explains that
[an intellectual movement that] has achieved hegemony makes its principles seem like “good professional practice . . . or conventional wisdom.” Those who fail to affirm these principles are stigmatized, and their arguments are dismissed. The ideational entrenchment is likely to be especially powerful in professional settings like the law, where opportunities for concealing normative choice in technical garb are widely available. (p. 16)
The Federalist Society was essential to combating this entrenchment. The left enjoyed such hegemony when the Federalist Society began its work of hosting debates and panel discussions, sponsoring conferences, and producing publications—but, in short order, conservative ideas, such as Constitutional originalism (the idea that the Constitution’s provisions ought to be interpreted according to their “original meaning” at the time of ratification), have nearly become “conventional wisdom.”
Teles tells the story of the Federalist Society and indicates the choices it made in developing its successful strategy. As it rose in influence, for instance, the Society adhered to its concept of “boundary maintenance” and avoided taking on many projects urged upon it, such as rating judicial nominees, founding a litigation center of its own, and publishing position papers on controversial issues that would have undermined its role as a relatively neutral facilitator of relationships among intellectuals.
Conservatives were eager also to see their ideas move into the law schools, which controlled notions of “the proper function of law in society, of which legal claims are ‘off the wall,’ and of how a career in law might be pursued” (p. 13).
Certain intellectuals and patrons thought an opportunity to introduce more “right-wing” ideas into the law schools could be served by sponsoring programs in “law and economics.” Teles shows that this effort succeeded beyond their expectations: Over the course of thirty years, it transformed the subject of “law and economics” from an “off-the-wall” idea that was once dismissed out of hand to a widely embraced subject studied in nearly every law school in America.
It should be noted that, as a philosophic matter, the coupling of law and economics in this manner is not a proper approach to defending individual rights. It is, in fact, a capitulation to legal realism—the notion that law is whatever the courts say it is—and collectivism—the notion that the individual is subordinate to the group. (The celebrity intellectual of these doctrines is Judge Richard Posner, a direct philosophic descendent of Oliver Wendell Holmes.) The conservatives’ intention, however, was to introduce economic analysis into law so that legal professionals might consider the economic costs of antitrust laws and other regulation of business. And in this respect, the conservatives made some headway.
On one track, Henry Manne, then a professor at Rochester University, was offering seminars and workshops to introduce economic analysis to legal thinkers. These were offered from Rochester under the auspices of “the Economics Institute for Law Professors.” Over time, says Manne, I “educated over 650 law professors, and I dare say I became friendly with a great number of them. So slowly, this idea that Henry Manne was some kind of a kook—and it was strong—[declined]” (p. 106). To borrow a phrase from Yaron Brook in his discussion of advancing Objectivist ideas, Manne was “softening the culture” for what he regarded as a more sensible approach to law.
On another track, the John M. Olin Foundation was funding fellowships for promising legal intellectuals, and providing seed money to begin law and economics programs at elite universities. These programs, however, spurred controversy at top schools and met resistance from powerful establishment faculty. Manne avoided such resistance by launching an ambitious Law and Economics Center at the University of Miami—a school chosen deliberately for its relative lack of prestige. This circumstance enabled him to insist that his patron’s grants provide “no permanent endowment,” that they be “conditioned on [his] continuing as Director of the Center,” and that “funds for individual professorships . . . be conditioned on the chair’s being occupied by a specific individual” (p. 114). In other words, it insured that funding for his ideas would not be co-opted by universities for other purposes. Among the programs Manne created was the “Economics Institute for Federal Judges,” which taught seminars to judges on the methods and principles of law and economics. “At its height in 1990, the Economics Institute for Federal Judges . . . hosted 40 percent of the federal judiciary” (p. 113) at its conferences.
Ultimately, Manne would move to create a “refuge for law and economics . . . rather than burrowing from within at existing law schools” (p. 183). When George Mason University (GMU) “acquired a low-status law school based in Washington, DC,” (p. 208), Manne’s academic supporters and patrons brought him in to the school with the goal of remaking GMU School of Law (GMUSL) as an engine of scholarship and development for scholars on the “right.” GMUSL “seeks quite openly to perform a critical service to the larger conservative movement by increasing the market value of ideologically sympathetic young law professors” (p. 215). A strategy of the school, says Teles, is to hire top young professors on the right, allowing them to engage in research and to produce publications that might be discouraged at other schools. Ultimately, GMU hopes that such professors will move on to more elite institutions, with their conservative identities intact, and influence the culture accordingly.
Despite the benefit of Teles’s book as a source of information about this movement, its title is misleading: Teles neglects to cover important aspects of the rise of the conservative legal movement—such as the rise of Christian legal organizations and other social-conservative legal institutions, which are an indispensable part of the story he purports to tell. (In an opening footnote, he disclaims this arena, citing the difficulty of research.) Consequently, the darker side of the conservative legal movement gets an unfortunate and undeserved pass. One should be careful, therefore, not to exaggerate or conflate the organizational successes Teles describes with philosophic, or even political, “success.” Although certain conservative public interest legal foundations and think tanks have done valuable work, a large part of what the broader movement has accomplished is detrimental to the cause of individual rights.
Teles’s book is, however, a valuable resource for its demonstration that the conservative movement’s organizational successes were not simple or foreordained, and for its lessons regarding the advancement of insurgent ideas.
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