SCHOOLS FOR MISRULE: LEGAL ACADEMIA AND AN OVERLAWYERED AMERICA
By Walter Olson
Encounter Books, $25.95, 237 pages
As a 2007 Carnegie Foundation report titled “Educating Lawyers” explained, law schools are “hybrid institutions” emerging both from “the historic community of practitioners” and from “the modern research university,” and over time “their academic genes have become dominant.” This led to a “disconnect” between the legal academy and “the world of practical law,” and it had consequences.
Were this just a case of ivory tower intellectuals diverted by esoteric topics of little external consequence, we might logically pay it little mind. But, as Walter Olson explains in “Schools for Misrule,” “Bad ideas in the law schools … mature … into bad real-life proposals.” Bad ideas in a French department are unlikely to affect the way “people on the outside” speak French. “Bad law,” on the other hand, “can take away your liberty, your property, or your family.” As Mr. Olson’s informative book makes clear, this is a matter of more than academic concern.
“Schools for Misrule” is wide-ranging. We learn how, through its accreditation process, the American Bar Association “pushed” a model that led to law faculties “whose loyalty was not to the world of everyday practice.” Legal scholarship, clinical legal education and funding from organizations, essentially all on the political left, combined to “confer power on legal intellectuals and their allies.” So there evolved a legal academic community that, in contrast to “the ranks of high-end practicing lawyers,” is virtually devoid of ideological diversity.
As the ascendancy of “academic law” led to “a boom in research, conferences, and the output of law reviews,” the notion that a professor’s “main task was to lay out accurately what the current state of the law is” for students soon to encounter it came to be seen as inadequate. Rather, as one article put it, law schools needed a curriculum “oriented toward achievement of democratic values” and “social objectives.” This was to supplant courses “with too much deference to ‘separation of powers,’ ‘jurisdiction,’ [and] ‘interstate commerce.’ ” Courses on contracts or property were derided as “much-favored instruments of the laissez-faire society.”
Views of this sort fairly predictably led to teaching and writing that aimed to undermine rules and doctrines that had limited litigation. To cite one of numerous examples, statutes of limitation were too “rigid and mechanical” when they would prevent redress for decades-old injustices. Mr. Olson illustrates in detail how legal academia “was smitten with the idea of expanding rights to sue, with less regard … for the shrinking right to go about one’s affairs without being sued.”
The advent of law school “clinics” brought both foundation funding and pedagogical cover for “social justice” projects. In reality, the professed goals of training lawyers and serving indigent clients often were eclipsed by the quest for “test cases” and “social change.” Poor people, it turned out, wanted legal services (divorce, traffic violations, misdemeanor defense) that had “little to do with changing society.” The clinics preferred to turn away such matters in favor of “high profile cases,” so that the lawyers could “save thousands instead of a few.” And in numerous cases, the “public interest” remedies pursued by law clinics brought results harmful to the communities they professed to serve.
Mr. Olson summarizes several litigation sagas that were conceived or advanced by members of legal academe, sometimes flowing from academic movements such as critical race theory. Each of these is a fascinating tale in its own right: tobacco, slavery reparations, Indian land claims and the current darling, international human rights.
Across the board, one cannot but be struck by how ready and willing our legal minders are to disregard established rights of law-abiding citizens in order to achieve their “public interest” goals. As Mr. Olson notes, this reflects the law schools’ bias “toward the expansion of law and its uses.” The advance of “positive” rights may narrow not only “the ‘old’ negative realm of individual liberty but also the bounds of democratic choice.”
“Schools for Misrule” concludes with the hope that law schools will train “future lawyers to respect the legitimate interests of their future clients … to recognize the dignity of the kind of everyday legal work that the world will always need … [and] to do all this in an ethically grounded, appropriately humble way.”
There are encouraging signs on this front. For example, according to a recent article in the Chronicle of Higher Education, my own alma mater, Washington and Lee University, has “jettisoned the entire third year [curriculum] and rebuilt it from scratch” around “practicum” courses based on real-world simulations, skills development and instruction on “professionalism.” Having read Mr. Olson’s excellent book, I say not a moment too soon.
For lawyers and nonlawyers, “Schools for Misrule” is richly informative about the how the legal profession has acquired such a pervasive role in our lives, for better and worse.
Ray Hartwell is a Washington lawyer and a Navy veteran.