Posted: April 2, 2012
n Democracy in America, Alexis de Tocqueville marveled at the influence lawyers had on American government-an influence that has surely grown exponentially since his time. Lawyers, he thought, are the ones to whom the people turn in the absence of the rich, the royal, or the noble. They are uniquely well situated to check the excesses of democracy. Their habits of order and concern for formalism render them opposed to the passions of the multitude. They secretly scorn popular government and maintain the last vestiges of aristocracy in democratic regimes. In such regimes they align by their interests with the many, but by their habits and tastes with the few. They are a link between the claims of democracy and aristocracy.
Whatever the regime type, lawyers' access to specialized knowledge gives them a sense of superiority, and puts them, at least in their own estimation, on a plane with political rulers. Hence, as Tocqueville notes, it's better for those rulers to bring them inside the tent, rather than leave them outside to cause untold revolutionary mischief. As long as lawyers hold elevated positions in a regime, their spirit is conservative.
So Tocqueville thought the influence of lawyers was mostly for the good, a point on which few Americans today would concur. And they wouldn't concur for reasons that the Frenchman's own analysis lays bare. As long as men's independence is taken away by legislation, lawyers are not likely to protest. Their interests, as well as inclinations, are satisfied. Lawyers love order and authority more than freedom, and fear tyranny less than arbitrariness. For too many lawyers today "arbitrariness" includes the spontaneity of civil society, and "order" means the controlling legal authority and apparatus of the administrative state.
Yet it's not as if Tocqueville was wrong, or insensitive to the full implications of his irony. It's just that he was largely describing the culture and role of traditional common lawyers—the barristers and solicitors—a breed that has almost disappeared from the American political, if not legal, landscape. He describes the English or American lawyer (in contrast to his continental counterpart) who still has "a taste and respect for what is old," and who wishes to rely "on the sense of his fathers." Such a lawyer is timid, regular, and legal—a cautious interpreter of "an occult science" that looks backward rather than forward and relies on particulars rather than highly contested abstractions.
But a funny thing happened to the American common lawyer, and that funny thing was the American law school (which came into its own a century after Tocqueville wrote). As legal training and apprenticeship gave way to legal education and schooling, wave after wave of progressive thinking washed over the expanding and newly confident law schools. By the 1920s, a wholly new science of jurisprudence was coming to the fore, based on an explicit rejection of what it claimed were the stultifying confines of legal "formalism" and the natural rights constitutionalism of the American Founders.
This progressive understanding of law, resting on fundamentally Darwinian and pragmatic premises—and therefore looking ever forward rather than backward—underpinned the development of sociological jurisprudence and legal realism within the law schools. In statutory or constitutional interpretation, it would henceforth be the job of lawyers and judges to take into account the full range of social considerations previously thought to be the province of the legislator, and to understand all laws in light of their purported functions rather than their text and the historically grounded understanding of that text. The creative acts of the legal experts, rather than black letter law, would govern the day in order to prevent social stasis. Unchanging principles were out, social context was in.
In the progressive dispensation, laws would be promulgated with greater frequency, executed with greater vigor, and interpreted with greater fluidity, because no social or political problem was understood to be an inherent facet of human nature. Indeed, human nature itself, along with society, was understood to be constantly evolving, placing wholly new sorts of demands on the constitutional order. Permanent limits on government were held to be counterproductive, standing in the way of necessary growth and change. The Constitution itself came to be understood as a vehicle for change rather than a means of constraint. The end result was that law schools, and the lawyers who were their products, put themselves in the vanguard of revolutionary change. Nowadays, there is nothing particularly conservative about them, except that they are dedicated to preserving their interests.
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Walter Olson, a senior fellow at the Cato Institute, gives passing mention to some of these developments as he tries to show just how damaging the radicalized law schools have become to our public and private lives, and indeed to the cause of republican government. He opens by noting that the elite law schools produce our ruling classes—those elected to public office, and those faceless bureaucrats who occupy the upper echelons of the national government. And like so many parts of the modern American university, the law schools are full of bad ideas. In engineering schools bad ideas are quickly banished, else bridges would fall down. That's not the case in law schools, or in other humanities or social science programs. But unlike many ideas born in the humanities and social sciences, the ideas generated in law schools can have the direct consequence of destroying people's lives, liberties, and estates.
In offering an ideological profile of the law schools, Olson concurs with the assessment that, as the Anglican Church was the Tory party at prayer, the law school is the Democratic Party at the lectern. He goes on to offer a fulsome indictment of our legal culture: extortionate tort litigation, questionable ethical dealings of leading law schools and professors, political advocacy passed off as legal education, the ideological tendentiousness of public interest law, demands for reparations for slavery and return of Indian lands, global human rights claims that undermine American sovereignty, and the judges' reliance on foreign law to interpret the U.S. Constitution.
This witch's brew of corruption and institutional overreach results in a situation where established law is ever-changing, and new laws—as well as new uses for the legal system—are ever-arising. Olson in effect concurs with James Madison, who noted in The Federalist the effects of what he called mutable government:
It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they...undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow.
Numerous and unstable laws serve only to give unreasonable advantage "to the sagacious, the enterprising, and the moneyed few over the industrious and uninformed mass of the people."
But the problem goes deeper even than that. The preachy hubris of today's legal class is at the heart of the destructive influence of the law schools on the regime as a whole. Olson points to the dean of a leading school describing his institution as the "Republic of Conscience." Such hubris is indicative of the fact that elite legal opinion feels itself unconstrained by the duty to undertake something as mundane—but vitally important—as cost-benefit analysis. And too many legal educators now understand themselves to be the teachers and practitioners of the architectonic science—law has replaced politics, and the serpent-windings of the clever advocate have replaced statesmanship.
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Olson has thus set himself to an important task. Unfortunately, his book is not up to it. This is a great loss; Olson is unquestionably one of the most insightful commentators on our legal culture. But in this book he nowhere offers a sustained analysis of the intellectual currents that dominate the law schools or the jurisprudence that is their consequence. He relies instead on anecdotes pointing to the excesses of individuals and institutions. One anecdote bleeds into another, and the chapters don't have strong thematic unity. Abrupt transitions abound, as do subheadings that bear little relationship to chapter titles. The liberal use of the symbolic equivalent of ellipsis dots throughout the book is an admission of a failure of discipline on the part of the author, and a lack of editorial oversight on the part of the publisher. On the whole the book reads rather like a blog put to paper.
Some readers will feel misled by the book's title. The volume is as much about the alleged misbehavior of individual lawyers and law professors as it is about legal education. It offers a list of grievances about our legal culture more than a sustained argument about their roots in the law schools. And many of the grievances cannot be laid solely at the feet of the law schools, but involve, among other things, complex failures of the political branches to assert sovereignty over matters rightfully within their domain.
Olson's approach has other problems as well. Anecdotes are unlikely to win over anyone not already convinced of the author's conclusions. He might have traced in depth just what the law schools have become, and why. Instead, he has given us a breezy collection of stories about lawyers behaving badly-behavior that will not come as news to anyone inclined to read his book.
Although Olson's work is something of an opportunity missed, it does offer us yet another reminder of what we already know. The power of today's lawyers, far from checking democratic excess or shoring up the rule of law, has precipitated the very sentiment that Madison feared:
that diminution of attachment and reverence which steals into the hearts of the people, towards a political system which betrays so many marks of infirmity.... No government...will long be respected without being truly respectable; nor be truly respectable, without possessing a certain portion of order and stability.
Would that the elite law schools might still produce a few good country lawyers to remedy that.