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Teles's The Rise of The Conservative Legal Movement:

I've just read this book, and it's very interesting, and recommended to anyone interested in, well, the rise of the conservative legal movement.

I should note, however, that the book is not a comprehensive look at its subject matter. The book focuses on the intellectual and organizational history of law and economics, select (non religiously based) conservative public interest firms, and the Federalist Society. You won't find much if anything here about, to take some examples off the top of my head, Reagan's appointment of prominent academics such as Posner, Easterbrook and Winter to the federal appellate courts, clerkship selection by Justice Scalia, the Manhattan Institute's civil justice program, the role of the Institute for Humane Studies in nurturing future libertarian and libertarian-ish law professors, the nomination of Clarence Thomas to the Supreme Court, the Rutherford Institute, or Regent Law School, among many other pertinent subjects.

I'll have some more detailed comments over the next several days. But I'll start with the one "correction" I have from personal knowledge. Teles attributes the idea for the Federalist Society's Olin fellowships entirely to Professor Gary Lawson. Lawson was responding to a query from Gene Meyer, the Society's president, regarding how the Society could most efficiently help its members pursue academic careers. I had a very similar conversation with Meyer, responding to the same query. Having spent the 1994-95 academic year as a research fellow at Columbia Law School, I made the same suggestion independent of Lawson. I don't know who suggested it first, and it's entirely plausible that Meyer was far more impressed with Lawson's "pitch" than with mine. Still, while it's not exactly like I came up with a cure for cancer, I'm proud of the successes of the fellowship alumni.

Ted Frank (www):
Teles will be speaking at AEI March 24, with Michael Greve and Jack Balkin commenting.
2.26.2008 1:35am
Thales (mail) (www):
David's comments fill some interesting gaps in the history of what has been a stunningly successful rise to power and influence in American law of conservatives and libertarians. Not sure that either would really want to trumpet Regent Law School, however. Its most famous graduate, Monica Goodling, is a symbol of what many liberals, conservatives and libertarians alike see as the political seduction of the Justice Department and a blow to the rule of law and plain old truth speaking (vide her cringeworthy Congressional testimony). I'm genuinely curious about other Regent grads who may have accomplishments that are objectively praiseworthy, or if it is merely a feeder school for corrupt political flunkies. I would love to have my suspicions proven wrong on this one.
2.26.2008 11:24am
Mr. Liberal:

To put it another way, I suspect that at most respectable American law schools, a speaker presenting a paper on 19th century labor reform who talks about "exploited workers" will be asked to define what he means by "exploited," if he didn't already anticipate that question in his remarks. From my experience, in other disciplines not only would such a speaker not likely be asked to define the term, the speaker wouldn't be able to provide a rigorous explanation if asked, and indeed had never considered what "exploited" means beyond the idea that any poor worker can be deemed exploited in a quasi-Marxian sense.


First, if you need to have the term "exploited" explained to you, I don't think you belong in academia. =) It is not rocket science. I think the real issue is that you do not agree that there is anything negative going on when exploitation occurs, as opposed to an inability to grasp the meaning of it, and thus in need of a definition. Next, you are going to demand that I define "price gouging." But not because you want a definition, but rather because you fail to see anything wrong with it. Of course, one way to oppose restrictions on price gouging is to narrow the definition. And one way to oppose restrictions on exploitation is to narrow the definition. And that is what is really going on here. You want to bring up the definition of exploitation up because you want to engage in an uninteresting definitional debate in the hopes of reframing the issue in a manner more ideologically convenient.

In general, I think it is interesting that you would frame an ideological attack on a particular point of view as a definitional issue. I think this is actually a common strategy among those of all sorts of ideologies. I also think it is insincere. You are not really curious about the historians definition of "exploitation" or "price gouging," but are instead trying to advocate a more narrow definition of the term based on your own normative perspective.

Second, I really would like a definition of "quasi-Marxian." =)
2.26.2008 1:51pm
Mr. Liberal:

David's comments fill some interesting gaps in the history of what has been a stunningly successful rise to power and influence in American law of conservatives and libertarians.


I will tell you what has really benefited conservatives (not libertarians so much) when it comes to power and influence in American law: The fact that from Nixon to the end of Bush Jr. we will have had Republican Presidents for 28 years compared to 12 years of Democratic Presidents.

Its as simple as that. While conservatives and libertarians love to play the victim card (they are discriminated against in academia *cry* they are discriminated against by the media *cry* the mean old liberals are out to get us *cry*) the fact is conservatives have been in control of the most important institution when it comes to shaping the law.

What I find interesting is that even in power, conservatives can be such whiny bitches.
2.26.2008 2:00pm
DavidBernstein (mail):
if you need to have the term "exploited" explained to you, I don't think you belong in academia. =) It is not rocket science.
Okay, "Mr. Liberal," so what is it?
2.26.2008 2:04pm
DavidBernstein (mail):
Oh, and quasi-Marxian in this context: there's an employer, he's living comfortably. There's a worker, he's very poor. The employer is exploiting the worker, QED.
2.26.2008 2:06pm
Thales (mail) (www):
Mr. Liberal:

"What I find interesting is that even in power, conservatives can be such whiny bitches."

I heartily agree with this sentiment (but stay tuned for November) while admiring the discipline and intellect of certain aspects of the libertarian (and less so, the conservative) legal movement. You are right that they have a stranglehold on the courts at all levels, largely because Democrats simply failed to see what Reagan was doing in the early conservative court packing years. Richard Posner mentioned on Leiter's blog that it is to this he attributes the luck of his confirmation--he is far too opinionated/smart/unconventional to be confirmed to the Supreme Court or any appeals court today.
2.26.2008 2:39pm
Mr. Liberal:

Okay, "Mr. Liberal," so what is it?


I will respond later today when I have time. =)
2.26.2008 2:52pm
Joe McDermott (mail):
Isn't "Libertarian Originalist" an oxymoron? Isn't praise for the Federalist Society of an ilk? Isn't the notion that originalism is the only legitimate form of consitutional theory unspeakably arrogant and intellectually bankrupt? Why is it we have to elect a socialist to get liberty-minded judges? Aren't libertarians embarrased to be fellow travelers with the religious right? (see previous sentence)
2.26.2008 10:07pm