Law Schools Run Amok

A review of Schools for Misrule: Legal Academia and Overlawyered America by Walter Olson

I have argued in this blog that the progressive movement in America achieved success by following the game plan of the Italian philosopher Antonio Gramsci, who advocated: capture the culture, the politics will follow. The Left implemented Gramsci’s scheme by slowly – over several generations – gaining control of virtually all the opinion-molding organs of American society. These included: the media, academia, the K-12 educational establishment, foundations, libraries, unions, government bureaucracies, seminaries, a host of NGOs, the upper echelons of large corporations and – the one germane to this review – the elite law schools. With these institutions firmly, if not overwhelmingly, under the sway of statist thought and action, it is not surprising that America’s culture and politics have drifted inexorably left in the last half century.[1] In Schools for Misrule, Walter Olson examines the leftward march of the nation’s prestigious law schools and the attendant deleterious effects on American society.

I will discuss the content of the book momentarily. But first I wish to highlight a claim made, albeit implicitly, by Olson in the book. Namely, of all the institutions that succumbed to leftist thought during the twentieth century, it was the surrender of the elite law schools that did the most damage to society. It is my goal to assess the worthiness of that assertion, and I encourage the reader to ponder the matter as I describe the salient features of Olson’s penetrating study.

Olson’s work is comprehensive and detailed. He traces, in mostly a chronological fashion, how progressive philosophy and leftist ideology at first seeped into and eventually flooded the halls of American law schools. He begins by pointing out that law schools became well established on American campuses precisely during the so-called Progressive Era, 1890-1914. The law schools’ newfound prominence dovetailed nicely with the advent of professional licensure in America. By that I mean the process by which the heretofore free-for-all entry of individuals into numerous professions and vocations began to be subject to government (or government-sanctioned) certification. This became common a century ago in various American businesses and industries – from meat slaughtering to pharmacy, from barbering to chauffeuring, from teaching to medicine. Well, there was no reason to exempt lawyering from the process. And so the country’s law schools became the gatekeepers for the nation’s legal profession. Thus the faculty at the nation’s law schools – especially, those of the elite variety – obtained control over the training and philosophical outlook of the nation’s lawyers. Since we are a country under the rule of law, those who control the lawyers thereby control the law and thus the country to a great extent.

Having established the seminal power of the legal academy, Olson then traces the history of American law schools via two series of developments: first, various quantum leaps at the schools themselves in the nature of their curricula and structure; and second, how the former resulted in many radical legal ploys that shook the nation. Within the first of these, perhaps the most striking was in the 1950s when Yale Law School announced that it would no longer require its students to take a course in Property. Now it is widely acknowledged that when Jefferson enunciated our natural rights to “life, liberty and the pursuit of happiness,” it was well understood that happiness was to include, if not be a euphemism for “property.” The right to property is sacred in American law. Yale’s dropping it from its curriculum sent a powerful signal of the leftward drift of legal academia.

Some of the other major changes in law school curricula/structure that Olson discusses include: the almost obsessive focus on torts pioneered by William Prosser, the long-time Berkeley law dean; the compulsive emphasis on the training of law school students to be litigators rather than people steeped in a knowledge of the law who could put that knowledge to use in many different ways; the setting up of special “centers” in the schools, about the activities of which it would be difficult to distinguish from those of organized lobbying entities; and among these, law clinics – generously supported by liberal foundations – pursuing what is commonly called public interest law, thereby converting an academic enterprise into a hyper-political, “community organizing” type of operation. Naturally, Olson views all of this through the lens of a severe critic of the nation’s legal academy.

The above developments in law school curricula and structure heralded the belief – by those who ran the show – that ultimate legal authority should be vested in the hands of the judiciary, not the legislature – and that when necessary, law should be executed from the bench rather than from the White House or Governors’ mansions. This led to the birth of all manner of specious legal doctrines, causes, and actions. Olson discusses: the explosion in class action law suits; the emphasis on product liability; advocacy research by law school faculty; promotion of welfare; reparations for blacks…er, that is, African-Americans; Indian…er, that is, native American sovereignty; the rights of the poor; environmental rights; animal rights; endangered species; homeless advocacy; rule by injunction; and subservience of US law to international law. In every one of these quests, the overwhelming slant was to the left. Moreover, while pursuing these radical causes, our law schools trained legions of lawyers who went on to be trial lawyers, public defenders prosecutors, judges, Congressional aides – and of course Congressman if not presidents. These constituted a broad cadre of shock troops for the left who are thoroughly steeped in progressive ideology, who have no exposure to any other thought processes, who have no idea how programmed they are, who inflict their opinions on a cowed American public and who perpetuate their ideas and replicate themselves continually.

Olson’s style is actually quite engaging. Although he treats deadly serious issues with the earnestness that they deserve, he manages to maintain an understated, even restrained tone, which if anything makes his arguments more dramatic. Here is a typical example of his ability to gently, if sarcastically, find a silver lining behind a nasty cloud.

Are students being indoctrinated? (Sorry ‘ensured’ of having a ‘commitment to social justice’ fully ‘instilled’ in them…or encouraged to ‘struggle’ with implications of ‘lawyering within an unjust system.’) Well, the subject of indoctrination in the modern law school turns out to have generated a bit of an academic literature itself. Unfortunately, the theme of the literature is that schools are falling down on the duty to indoctrinate and need to be doing a much better job of it. The overall law school experience, complains one report, tends ‘to undermine student activism.’ For one thing, the work demands on students are so extreme that little time is left for marches and rallies. But the problems go further. You’re ‘taught to see that there are two equal sides of any issue,’ as a student complains in one widely cited volume. ‘Two equal sides’ is assuredly a misstatement; no law professor ever would or has presented both sides of all issues as truly equal. But it captures a kernel of truth about standard law training, which is that it conveys the skill of looking for ways in which the other guy – even a polluter, harasser or bigot – might have something of a case. In being forced to rationalize positions directly opposed to their own, one book laments, ‘most altruistic-oriented students are confronted with a perspective that seriously upsets their view of justice.’

Finally, why do I assert that Olson implicitly indicts the law schools as the worst malefactors in the liberal conquest of America? Primarily because of these passages in the final chapter of the book, entitled Conclusions:

“Irving Kristol famously discerned in modern American society the emergence of a new class, its standing founded more on educational achievement and cultural fluency than on older forms of wealth or social position, its specialty the manipulation of ideas and symbols rather than physical labor or the ownership of the means of production. Estranged from and suspicious of the world of property and business, the new class (Kristol argued) is instead friendly toward the continued expansion of governmental activity, in part because it is itself relatively successful in influencing the actions of government. In particular, it is skilled in argument, and it often achieves (whether in its voting patterns or in its likes and dislikes generally) a kind of class solidarity at least as cohesive and impressive as that of, say, business managers or factory workers.

According to Kristol and others who took up his analysis, the characteristic redoubts of the new class include the universities, journalism, and the media, the public sector itself, and the professions, especially law. But has ever an institution been developed that is as powerful an engine of the new class ethos as the one that sits astride all four of these sectors – the modern elite law school?”

So is he right? Was the Left’s conquest of the elite law schools the most consequential step in the liberal takeover of American culture and politics? I am not convinced. Tomes have been written about: the erosion of traditional American values by our pornographic media; the promotion of social justice – i.e., cultural Marxism – by major foundations; the constriction of our freedoms by an expansive, out-of-control federal bureaucracy; and the crony capitalism, which undermines faith in our capitalistic system, practiced by large corporate entities in cahoots with the government. Were any of these less destructive than the law schools? Actually, for my money, the greatest damage has been inflicted by the K-12 educational establishment. The brainwashing of our children, the theft of their ability to appreciate how exceptionally wonderful American history really is, and the conversion of our youth into economically illiterate, historically dense, sexually active, eco-freaks is a massive crime that steals their souls and prevents the country from snapping out of the leftist trance into which we have been hypnotized. This is not to minimize the havoc wrought by the elite law schools, nor does it diminish the clarity of Olson’s analysis. It just means that as much damage as the law schools have done, other segments of the leftist machine have done as much if not more.

[1] Ah, but what about Reagan and the Gingrich Congressional revolution? Alas, these were brief interludes in which sanity was partially restored. But under Johnson, Nixon, Ford, Carter, both Bushes, Clinton and Obama, the trend has been unmistakably and unhesitatingly left. The crucial issue is whether the trend is also reversible.
[2] This review also appeared in The Intellectual Conservative at: