August 05, 2008
orgtheory features "Rise of the Conservative Legal Movement"
Posted by Gordon Smith

Our friends at orgtheory are hosting a Book Forum on Steve Teles' Rise of the Conservative Legal Movement. I haven't read the book, but it seems to focus on just what you might expect: law and economics, the Federalist Society, and conservative public interest firms (e.g., Institute for Justice). Teles traces the movement to the late 1970s, and it certainly was in full swing by the time I attended law school at Chicago in the late 1980s.

My first direct contact with CLM was in 1985, when I visited Clint Bullock at the Institute for Justice in Washington DC. I was an undergraduate in the DC Circuit Executive's office, and I was incredibly impressed with his work. And I thought the humble offices were cool.

The secretaries at my internship were encouraging me to go to Chicago for law school, rather than any number of other top law schools. Chicago had the right values, they said. Well, I didn't just take their word for it -- and it certainly made a difference that Chicago happened to be close to Wisconsin -- but that's where I ended up two years later. Once at Chicago, I was initially drawn to the Federalist Society because they had the best speakers and food (most money) ... and because I have always had a libertarian leaning.

I ultimately became an officer in the law school chapter of the Federalist Society, then founded a lawyer's division in Delaware. I have been the adviser to student chapters at Lewis & Clark and Wisconsin, but they don't need me here at BYU. Anyway, I don't spend much time with the Federalist Society anymore, but Teles' book sounds like a nice trip down memory lane.

In addition to a stroll down memory lane for me, the book seems to have some very interesting stories to tell law professors. This is from Teles' first post at orgtheory:

L&E was successful in law schools in part because of the pre-existing weakness of the fields it was attacking. Doug Baird, who went on to become Dean of the Chicago Law School, told me that in the 1970s, "it was clear that…doing great work was easy…I used to say that this was just like knocking over Coke bottles with a baseball bat…I remember writing articles where the time between getting the idea and getting it accepted from a major law review was four days." (p.100) That suggests that to account for the success of L&E, we need an approach that looks both at the pre-existing regime in the law schools (especially in private law), and not just on what the agents trying to bring it down were doing. That is, there was an opportunity that, in the 1970s, meet a set of mobilized agents. I think that you can’t explain what happened with the explosion of law and economics without dealing with the structural vulnerability in the legal academy that agents were able to exploit (along with the fact that the immune system of the legal academy was much lower in areas like bankruptcy that had lost much of the ideological interest that they once had).

Doug Baird's comment will seem shocking to those outside of the legal academy. It brings to mind a conversation I once had with a colleague that getting something published in a law review was no great accomplishment: "I could start a brand new article right now and have something publishable -- somewhere, maybe even somewhere respectable -- by the end of the weekend." That's merely a function of having way more outlets for publication than we have good product to fill those outlets. Still, I think there is no question we have come a long distance in the past 30 years.

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