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Steven Teles, The Rise of the Conservative Legal Movement:

I just finished reading Steven Teles's book The Rise of the Conservative Legal Movement and wanted to add my praise to that of others (here's a collection of our posts on the book). It is a significant and interesting book.

Moreover, it is eminently fair and well-researched. Teles writes with insight and obvious admiration for the success of the conservative legal movement (leaving aside whether he agrees with its ends) and in particular for its resiliency in learning from its early mistakes. He also has developed an understanding of the way the conservative legal world works in terms of the centrality of intellectual and jurisprudential ideas and the way they cut across some traditional ideological issues. I find this interesting, in that like Jan Crawford Greenburg, I think Teles has made a genuine effort to understand what makes conservative legal thinkers "tick" and thus gets to some valuable insights. I also didn't know the early history of the conservative public interest law movement.

I should also note that I found the book to be quite well-written. For those who are not inclined to the political science part of the story (as opposed to the more historical part of the analysis) you may feel a bit bogged down in Chapter 1. It is an important scholarly chapter, but one that I think may be less interesting to the general reader. For the general reader, you can understand the rest of the book even if you don't read that chapter carefully. The rest of the book is quite engaging.

One interesting point raised by Teles from a political science perspective is his observation that there is something redundant about the efforts of groups like the American Constitution Society to try to replicate the Federalist Society. Teles argues that in the middle of the twentieth century conservatives were more successful in building a popular and electoral movement than an elite academic and legal movement. Thus, groups like the Federalist Society were necessary to address this deficiency in the conservative movement.

By contrast, during this period liberals were extremely successful in building an elite infrastructure in the academy, courts, and public interest law movement, but less successful in building popular electoral support (this is an empirical claim with which some might disagree but which seems to me to be a reasonable assertion for the argument that follows). Thus, he suggests, there is little need for more liberal elite activity.

This leaves aside the question of whether liberals have actually digested the key to the success of the Federalist Society. Teles, I think, does get it. As Teles notes--accurately I think--the key to the Federalist Society's success has been two-fold. First, it has adopted a "big tent" approach toward its intramural debates that sweeps in everyone from Robert Bork and Lino Graglia on one hand to Randy Barnett and Richard Epstein on the other. In short, the Federalist Society has embraced its own internal debates and intellectual squabbles as well as engagements across ideological lines, which I think contributes to the robustness of its intellectual mission. Second, Teles stresses that the policy cash-out from the the Federalist Society is a by-product of its primary focus, not the central focus of the group. Thus, the Federalist Society can provide a basis for networking for government jobs or to find pro bono lawyers, but it does not take positions on public issues, bring cases, or file briefs. I think that Teles is right that this ability to avoid "mission creep" has been a great part of the group's success.

Steve also notes the influence of the Olin Programs in Law and Economics at law schools in shaping the legal culture. I note that when I was a student at UVA, and a primary reason why I chose to go to law school there rather than other places where I was admitted, was because I was awarded a scholarship as an Olin Scholar in Law & Economics (I think that's what it was called). Although the program was only modestly organized when I was there, it did give me the opportunity to attend some workshops and conferences during my time there. When I was in law school the Olin Fellows in the class ahead of me were Adam Pritchard (now of Michigan Law School) and Don Boudreaux (now the Chair of the GMU Economics Department). There was one other Olin Scholar when I was there who went into academia for a year before settling in private practice.

One other notable point by Teles is his conclusion that libertarianism has proven more susceptible to advancement through public interest litigation than traditional conservatism. Oversimplified, his argument is that traditional conservatism is designed to uphold government power (think the law and order movement of the 1970s) whereas libertarian goals are more easily vindicated through the courts and the Constitution. Interesting hypothesis.

It also reminds me of a question I was also asked by a friend at another law school, which is why among the small group of "right-leaning" legal academics, libertarians seem disproportionately represented when compared to the ratio of libertarians and conservatives within the "conservative movement" as a whole. If that is an empirically-valid observation (and it does seem plausible) I wonder if Teles's analysis is translatable to the academy as well? I don't know the answer, but it is a neat observation.

It is also worth noting that I've talked about the book with many of those discussed in it and they are uniform in their praise of its accuracy, fairness, thoroughness, and insight. On the other hand, I would echo the caveat that I think either David or Ilya initially expressed, which is that I think the idea of George Mason as a consciously "libertarian" law school is a misnomer.

Overall the book is highly recommended and I encourage you to add it to your summer reading list.

another anonVCfan:
"It also reminds me of a question I was also asked by a friend at another law school, which is why among the small group of "right-leaning" legal academics, libertarians seem disproportionately represented when compared to the ratio of libertarians and conservatives within the "conservative movement" as a whole."

My sense has always been that--without regard to the merits of either position--shaking up the social order is simply more exciting than maintaining it. Since libertarians often want to make radical changes in the law, they might find a life in legal academia more interesting than conservatives who focus more on the value of stable institutions and the received wisdom of experience. It could also be that libertarians, being more radical, are more strongly dissatisfied with the current state of the law, and therefore less happy in private practice than conservatives are.
4.28.2008 12:48pm
Tennessean (mail):
I've often wondered how many Conspirators/local commentors are libertarians in the political philosophy sense (e.g., following in the footsteps of Nozick) versus how many are libertarians in the mistrustful-of-government-as-means sense. (Relatedly, I've often thought it would be interesting to see someone like Kymlicka guest blog here on libertarianism.)
4.28.2008 12:52pm
SIG357:
"It could also be that libertarians, being more radical, are more strongly dissatisfied with the current state of the law, and therefore less happy in private practice than conservatives are."





Which makes the whole Federalist project a waste of time. We already have legal groups dedicated to making "radical changes in the law" and "shaking up the social order". The ACLU for instance.

If lawyers crave excitment, perhaps they could get their kicks in some fashion less destructive to the society they allegedly serve.
4.28.2008 12:58pm
ithaqua (mail):
Haven't read the book, but the title already annoys me. The 'conservative legal movement' isn't 'rising', as if it's something new and different (as liberal propagandists like to claim); it is, rather, an attempt to restore American values and return the courts to something more in line with the Founders' original vision, pushing back against a loathsome 'progressive' pro-criminal usurpation of the legal system that reached its apex with Roe v Wade in the 70s. A better title might be 'The Fall of the Socialist Legal Movement' :)
4.28.2008 1:33pm
Cornellian (mail):
Thus, the Federalist Society can provide a basis for networking for government jobs or to find pro bono lawyers, but it does not take positions on public issues, bring cases, or file briefs. I think that Teles is right that this ability to avoid "mission creep" has been a great part of the group's success.

This
4.28.2008 1:43pm
Cornellian (mail):
The 'conservative legal movement' isn't 'rising', as if it's something new and different

The term "rising" does not mean either "new" or "different."
4.28.2008 2:29pm
hawkins:

it is, rather, an attempt to restore American values and return the courts to something more in line with the Founders' original vision, pushing back against a loathsome 'progressive' pro-criminal usurpation of the legal system that reached its apex with Roe v Wade in the 70s. A better title might be 'The Fall of the Socialist Legal Movement'


Yep, the Constitution only protects enumerated rights. The majority has absolute power to prohibit interracial marriage, the use of contraceptives, and sending kids to private school or teaching them German. It's even entitled to order visitation rights for a third party against a parent's wishes.
4.28.2008 3:03pm
Jiminy (mail):
Some might argue that the Founder's original vision was something very out-of-step with the status quo of the day - a progressive form of government that was formed out of a reaction against the conservative or reactionist policies of the Crown and its legal excesses such as the Star Chamber. But I am a liberal socialist Communist propagandist and not a personist with ideas that you might disagree with.

Liberals or progressives who seek to use the courts as a lever are doing so because it is easier than seeking a super-majority or creating veto-proof legislation. Originalists do a clever job of interpreting the 200-year-old tea leaves to arrive at their own conclusions and attempt to shut down the check &balance of the judges.

Who is "wrong" in this case? Please. I like a lot of Scalia's conservative legal theory, which basically wants legislatures to make and fix more laws. It's not new or different. It's restated in a more effective manner and comes to terms with the modern opposition's ideas.
4.28.2008 3:17pm
Vermando (mail) (www):
Interesting post. As a student at the sort of top law school that I think many have in mind when they speak of liberal elites, I can testify to the fact that the Federalist Society has made its present very felt. It provides a networking opportunity that indeed gives conservative minded law students confidence that they can stick to their guns and still get jobs in the future, and it lets them know that intellectually they are not alone. Indeed, building on some points in the post, an interesting phenomenon to note is that indeed the Conservative intellectual movement is in at least its second generation now, as many of the speakers the Fed Soc brings in were Fed Soc members themselves.

Two points bear further discussion, I think. One is how the movement will change now that it is no longer a lonely voice crying in the wilderness. Given that the elite conservative law school graduates have done so well in government positions - indeed, better sometimes than many of their liberal peers because of the GOP's electoral success and the Right's success in building a vibrant think-tank network - Fed Soc no longer finds itself in that new and young "us v. the world" position. Indeed, given the success of law &economics in certain fundamental areas, such as contracts and torts, one sees more liberal students complaining today that they are the ones who feel intellectually isolated. This is of course a question for conservatism as a whole, but I wonder if all of this success will / necessitates changes, and if so, how those can best be accommodated.

Second, I disagree that there is no place for the ACS. Yes, there are plenty of liberals comfortably ensconced in academic sinecures, and the power of the real Leftist public interest groups like the ACLU cannot be doubted. However, there was no group on the Left to do what Fed Soc did for the Right of providing them a place to share their ideas across a broad range of topics and within a fairly heterogenous environment. Certainly if one looks at the speakers and debates they have sponsored - often in conjunction with Fed Soc - then their presence is noteworthy and needed.

Great stuff, would love to hear more.
4.28.2008 3:22pm
Dilan Esper (mail) (www):
As a liberal who nonetheless joined the Federalist Society in law school (they had the best debates and forums), I think one reason they are successful in that setting is precisely that they avoid some of the traps that conservative student groups sometimes get into, i.e., very provocative things like what Dinesh D'Souza used to do at Dartmouth or the affirmative action bake sales that have become popular. The Federalist Society chapters I am familiar with really try hard to make a positive contribution to campus life, to participate in the debate with other groups on campus, etc.

They have an ecumenical outlook, somewhat lost in other parts of movement conservativism, that you need to draw people in and get people interested in your ideas rather than turning them off.
4.28.2008 4:01pm
Steven Teles:
The last post is very interesting, especially because I explicitly compare the strategy of the Federalist Society to that of the Dartmouth Review (maybe Todd has a comment about this). I have a quote from Steve Calabresi which says that he thought that the DR-style conservatives acted like caricatures of conservatism, whereas the founders of the Society wanted to make their philosophy seem attractive to non-conservatives. Whereas the DR believed that they were exposing the hypocrisy of liberalism, the Federalist Society thought that they could enter into serious, respectful debate with liberals, and in the process convert some of them to conservatism, and at the least legitimate conservative ideas within the world of legal education. All of this, and more, is in Chapter Five of the book.
4.28.2008 5:00pm
Cornellian (mail):
I have a quote from Steve Calabresi which says that he thought that the DR-style conservatives acted like caricatures of conservatism, whereas the founders of the Society wanted to make their philosophy seem attractive to non-conservatives.

Mr. Teles's point is exactly on target. Some self-described "conservative" groups seem more interested in Coulteresque provocation for the sake of provocation. The strength of the Federalist Society is that it's interested in ideas and debating those ideas. I'd just quibble with the clause "seem attractive to non-conservatives," which has a slight (and I think unintentional) connotation that it's a bit of sugar-coating.

I think it would be a bit more accurate to say they "wanted to make their philosophy persuasive on the merits, thus appealing not just to conservatives, but also to non-conservatives." That's a goal that always deserves respect.

I'd also note that the term "conservative" is particularly slippery in this context, since one can be a social conservative without being a judicial conservative, and vice-versa.
4.28.2008 5:12pm
OrinKerr:
Very interesting comment, Vermando, thanks for posting it.
4.28.2008 5:26pm
EIDE_Interface (mail):
What's wrong with Ann Coulter? She's an American too.
4.28.2008 5:43pm