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:

Income Equality — No; Consumption Equality — Yes

There is a remarkable article in the January 3rd Wall Street Journal by Andy Kessler, a hedge fund manager turned author. In it, he proposes a novel idea – namely, while acknowledging substantial income inequality in the US, he asserts that in fact the nation has achieved an amazing level of equality in consumption. According to Mr. Kessler:

“It used to be so cool to be wealthy—an elite education, exclusive mobile communications, a private screening room, a table at Annabel’s on London’s Berkeley Square. Now it’s hard to swing a cat without hitting yet another diatribe against income inequality. People sleep in tents to protest that others are too damn wealthy.

Yes, some people have more than others. Yet as far as millionaires and billionaires are concerned, they’re experiencing a horrifying revolution: consumption equality. For the most part, the wealthy bust their tail, work 60-80 hour weeks building some game-changing product for the mass market, but at the end of the day they can’t enjoy much that the middle class doesn’t also enjoy. Where’s the fairness? What does Google founder Larry Page have that you don’t have?

Luxury suite at the Super Bowl? Why bother? You can recline at home in your massaging lounger and flip on the ultra-thin, high-def, 55-inch LCD TV you got for $700—and not only have a better view from two dozen cameras plus Skycam and fun commercials, but you can hit the pause button to take a nature break. Or you can stream the game to your four-ounce Android phone while mixing up some chip dip. Media technology has advanced to the point that things worth watching only make economic sense when broadcast to millions, not to 80,000 or just a handful of the rich.

The greedy tycoon played by Michael Douglas had a two-pound, $3,995 Motorola phone in the original ‘Wall Street’ movie. Mobile phones for the elite—how 1987. Now 8-year-olds have cellphones to arrange play dates.”

Mr. Kessler goes on the explain how the average middle class Joe – and not one necessarily high up in that class – can consume products and services that are shockingly similar to those enjoyed by the millionaires and billionaires so prominent on President Obama’s hit list. Even the most mundane cars today sport features and gadgets not terribly different from those that adorn the highest end luxury models. Yes, the super rich can jet all over the world in their private Lear jets; but there is nary a place on the globe that is immune from Aunt Nellie and Uncle Horace’s touring club. Moreover, as Kessler says, “most places worth seeing are geared to a mass of visitors.” As for high quality medical care: the rich have always had access to it; but “Arthroscopic, endoscopic, laparoscopic, drug-eluting stents—these are all mainstream and engineered to get you up and around in days. They wouldn’t have been invented to service only the 1%.” In quality of health care, electronic gadgetry, transportation, even food and drink, the quality of the goods and services enjoyed by the masses is not that different from those savored by the super wealthy.

So, egalitarianism has come to America! It’s just not politically imposed by the government; but rather it has been acquired via the market. We have achieved leftist goals by rightist means.

Well, is all of this “stuff and nonsense,” or is Kessler on to something? I would say: yes and no. First, there is no question that income and asset disparities are becoming more pronounced in the United States. Despite the fact that the rich pay an increasingly disproportionate share of the income tax in America, and despite the fact that more and more of us derive robust incomes from government – both directly and indirectly, the gap in income and assets between the rich and the rest of America continues to grow. Why that might be is the topic of a separate article. Suffice it to say that even though Keynesian, soft socialists have been running the country (with a few exceptions) for decades, income equity – the Progressives’ dream – is no closer to being achieved than it has ever been in the nation’s history.

But have we truly achieved, as Kessler implies, a state of equity in our consumption of goods and services? It is undoubtedly true that many products and services that we traditionally think of as exclusively the province of the wealthy have become accessible to the middle class (and sometimes even to the poor), even if only in relatively modest versions. Whereas in the past, the meals, clothes, travel and vehicles of the rich were so far beyond the grasp of the common man, today that is no longer the case. Joe the Plumber may not be able to fork out thousands of dollars for a bottle of rare wine, but for $50-$100 – which he might well be willing to spend, he can get something remarkably close in quality. Lowly Louise cannot jet off to Vienna to see a production of La Boheme, but she can watch it streamed on her big screen LCD TV at a tiny fraction of the cost. Neither Joe nor Louise can afford an elaborate second home on Lake Winnipesaukee, but they can rent the place with friends at an affordable price and enjoy all the amenities.

Maybe Kessler is right. And if so, it is an amazing consequence of our (relatively) free market system in which courageous entrepreneurs, brilliant inventors, sagacious investors and visionary businessmen bring the playthings of the rich and famous down to the level of the common man.

And yet, while there is certainly truth to Kessler’s observation, he is missing an important point: all those zeroes. Whatever the budget/income/expenditures of your average middle class bloke might be, the corresponding figure for the super wealthy has multiple zeroes tacked onto the right end. Moreover, the power, accessibility, opportunity, connectivity and authority afforded by those zeroes are impossible for the bloke to experience or even understand. Yes, it might be that our amazing capitalistic economy has enabled the middle class – and sometimes the poor – to experience the flavor of the gadgets and amenities favored by the wealthy. But it is totally beyond the ability of the middle class to mimic the gargantuan sense of authority, control and influence that enormous wealth affords.

Now I do not claim that such a sense makes the wealthy any happier, better adjusted, humane or honorable than the middle class. We know of too many instances of wealthy individuals who stoop to crime, corruption, cruelty or cravenness. And often they do so because all those zeroes give them a false sense of superiority and invincibility.

“Now Lipsman,” you might interject, “how would you know? You’re not wealthy.” True. But I’ve known some very rich people. And in every instance, I’ve sensed a super self-confidence, haughty arrogance and air of entitlement that is impossible to miss. Sometimes it’s merited; sometimes not. Either way, the phenomenon of consumption equality that Kessler has identified – while interesting, and on target to some extent, does not really describe a true equality in the citizenry of the type that Progressives envision when they pine after income equality. The middle class may be able to acquire a taste of the concrete accoutrements enjoyed by the rich. But they cannot feel the power, haughtiness and grandeur of the latter. I suspect Progressives know this and resent it. Thus they will continue to strive for income equality. Let’s hope they continue to fail. My reason for saying that is also a topic for another day.

On the Two-Term Presidency

One of the greatest gifts that America has given to the world is the idea that the leader of a nation should be chosen freely by its people. Well, perhaps the notion did not originate in America, but the Yanks certainly showed the world how to do it. More spectacularly and more originally, the United States pioneered the following novel concept: when the favor of the people transfers from one faction (as Madison called them) or party to another, then the defeated incumbent gracefully steps aside as his victorious opponent peacefully and lawfully takes his place as the new leader. Indeed the peaceful transfer of power from the Federalists (Adams) to the Democratic-Republicans (Jefferson) in 1801 must be regarded as one of the most momentous advances in the history of human freedom.

Thus having taught the world how to peacefully install a legitimate leader, as well as how to gracefully escort him to the exit, it was incumbent upon the American people to decide how long they wished the time span between entrance and exit to last. George Washington solved the problem. He refused to serve more than two terms – thus setting a powerful precedent that lasted nearly a century and a half. This feature of America government became ingrained in our political DNA: presidents serve no more than two terms. And when finally this virtual commandment was violated by FDR, the nation ensured that there would be no repeat offense by writing it into the Constitution.

It is my thesis, however, that Washington set not only an upper bound, but a lower bound as well. Namely, he established the precedent that, unless there are compelling reasons not to do so, a sitting president shall be re-elected to a concluding second term. In fact, with the exception of two relatively brief periods (of 20-25 years each), it has been the habit of the American people to re-elect their presidents – unless one of two readily identifiable conditions (to be explained below) obtains.

In particular, not only Washington, but five of the first seven presidents were elected to two terms – the only exceptions being the Adams boys, father and son. Then followed a period (1837-1861) in which the American people gave the hook to every president. This fickle electoral behavior coincided with the extremely volatile antebellum period during which America was wrestling with the highly divisive slavery issue, as well as the rapid westward expansion of the nation.

The country reverted to form during 1861-1877 when it elected and re-elected Lincoln and Grant. But then came another 20-year period (1877-1897) when no president was re-elected. This includes Cleveland who served two non-consecutive terms. The explanation for non-stop presidential turnover in this period is not as clear cut as it is for the antebellum period. Certainly the late 1800s was a time of great upheaval in the country – but without any calamitous issue like slavery. It was the period of America’s industrialization: large migrations from farms to cities, growth of manufacturing, accumulation of wealth, massive immigration and the emergence of the USA as a world power. America was impatiently fulfilling its destiny as the world’s greatest bastion of individual liberty and free market prosperity. Perhaps its impatience extended to its assessments of its leaders.

Whatever the cause, following this period, the country reverted to form again in terms of its treatment of sitting presidents – and it remained there. From 1897 until 2009, only four US presidents were defeated for re-election: Taft, Hoover, Carter and Bush the father. (I do not count LBJ as he stepped aside voluntarily.) In the specified 112-year period, most sitting presidents, of both parties, were re-elected. The American people even re-elected FDR three times. So, how to explain the four exceptions? They fall into two categories. First Taft and Bush the elder. Both fell victim to an unusually strong third party candidate – Taft to Teddy Roosevelt and Bush to Ross Perot. Sans the extra competitor, it is almost certain that both Taft and Bush would have been re-elected. (I note, parenthetically, that the existence of such a candidate does not guarantee an upset – witness the 1924 election where the strong third party candidacy of LaFollette did not derail Coolidge’s re-election.)

More interesting are Hoover and Carter, who were trounced by their challengers without the help of a strong third party accomplice. Simply put, the people judged these two men to be incompetent, misguided and dangerous to the Republic. The public held them directly responsible for the sorry economic state of the country at the time of their race for re-election and sought remedy by decisively expelling them from office. Since the Spanish-American War, these two men hold the unique distinction of being the only sitting presidents to be summarily fired. This is quite an achievement on their part because many of our re-elected presidents were not held in universally high esteem. Yes, some were extremely popular and were re-elected in a cake walk (e.g., Reagan, Eisenhower, FDR); but others had to battle mightily to retain their positions, sometimes by slim margins (e.g., Bush the younger, Truman, Wilson). The American people might have been ambivalent about the latter presidents’ performances, but as was their natural inclination, the people stuck with their president. Not so for Hoover and Carter who are now universally ranked among our worst presidents.

Which brings me at last to Obama? What is to be done with him? Despite various entreaties, it appears that Hillary will not challenge him, nor will The Donald or Bloomberg – so no serious non-Republican contender is about to emerge. Therefore, the Republican challenger – whoever he or she might be – can oust the president only if the people judge Obama an utter failure. In fact, contrary to his promises, Obama has not brought forth hope, or any change for the better. He has not fostered a post racial society, but rather he is the author of economic despair, class warfare, a vision of America in decline, and the remaking of the US according to the European welfare state model. All this has led to dissatisfaction and a sense of betrayal about his presidency. The issue is: what is the magnitude of the dissatisfaction? Either the people will swallow their disappointment and follow their natural instinct to grant him a second turn at the wheel; or if the dissatisfaction is truly deep and broad, he will be dismissed with gusto. Given the well-known features of the red-blue electoral map, there are therefore only two possibilities. Either Obama will squeak by in an extremely close contest (à la Bush junior in 2004), or he will be blown out of the water like Carter in 1980. Personally, I believe that Obama is an incompetent, overly self confident, narcissistic, hardcore leftist ideologue who is dragging America toward a cliff similar to the one off of which most of the countries of Western Europe are plunging. I hope, but am not confident, that most of America recognizes this. If so, he is toast. If not, he might squeak by and retain the presidency. We will know in less than a year.
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This article also apeared in The American Thinker at:

Israel as the West’s Isaac

David Mamet makes an amazing accusation in an article in the September 13 issue of the Wall Street Journal. He speculates as to why the West seems to be so willing, even anxious, to throw Israel under the Muslim bus. He is aghast that, faced with Iran’s blatant assertion that it intends to destroy Israel and its equally transparent quest to obtain the nuclear arsenal to do so, the US and Europe have made painfully clear that they have no intention of preventing the planned genocide. Mamet identifies the cause of this craven and cowardly behavior.

The Liberal West has, for decades, indulged itself in an orgy of self-flagellation. We have enjoyed comfort and security, but these, in the absence of gratitude and patriotism, cause insecurity, This attempted cure for insecurity can be seen in protestations of our worthlessness, and the indictment of private property…How may they still the resulting anxiety? The Left’s answer is the oldest in the world: by appeal to the Gods. But how may the Gods be appeased? The immemorial answer is: By human sacrifice…The essence of the Torah is the Akedah, the Binding of Isaac. The God of Hosts spoke to Abraham, as the various desert gods had spoken to the nomads for thousands of years: “If you wish to relieve your anxiety, give me the most precious thing you have.”…In abandonment of the state of Israel, the West reverts to pagan sacrifice, once again, making a burnt offering not of that which one possesses, but of that which is another’s. As Realpolitik, the liberal West’s anti-Semitism can be understood like Chamberlain’s offering of Czechoslovakia to Hitler, a sop thrown to terrorism.

It is an astounding and horrific accusation. That is, by eagerly abandoning Israel, and thereby placing it in mortal peril, the West seeks to ease its guilty conscience over its supposed transgressions against the Muslim world and over its disproportionate share of the Earth’s wealth. Craven and cowardly do not do justice as descriptors of this heinous behavior. Treacherous, morally bankrupt – indeed, evil seem more appropriate labels.

God stilled Abraham’s hand before he could complete the abominable deed of sacrificing his son Isaac. But the Europeans no longer pray to the God of Abraham. Many Americans still do, although apparently in smaller percentages than at the time of Israel’s birth. Of course, Muslims pray to the same God. All of us, Muslims, Christians and Jews hear different responses. According to Mamet, the Jews should understand that we are now cast as Isaac in a new modern Akedah drama. Our liberal American and European “protectors” are cast as Abraham – albeit, an Abraham who is under the coaching of Ishmael rather than God. And therefore the story is intended to have a different ending. The people of Israel do not intend to follow the script. Too many American Jews do not understand the script. I pray that enough Americans do – and are so appalled by it that they will join with the Israelis in thwarting it.
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This post also appeared in The American Thinker at:

Moral Equivalence in Brussels

The name Howard Gutman has been in the news recently. He is the Jewish lawyer whose work for Obama in the 2008 presidential campaign was rewarded with an appointment as Ambassador to Belgium. He made a speech on November 30 at a conference in Brussels entitled “Fighting Anti-Semitism in Europe: What is Next?” If you haven’t read it, here is a link.

Ambassador Gutman has been roundly criticized in the American Jewish community for the content of his speech. In it, he claims that the widespread animosity – which has increasingly spilled over into violence – of the European Muslim community toward Jews is not an instance of historic anti-Semitism. Rather it is purely a consequence of the unsettled dispute between Israel and the Arab/Muslim world. That is, according to the esteemed Ambassador, the hate-filled, bigoted and vicious slurs – accompanied too often by physical attacks – directed by Europe’s Muslim community toward their Jewish brethren is due solely to the discomfort the former experience because the latter’s cousins in Israel refuse to play nice with their Arab neighbors.

It boggles the mind. Is Ambassador Gutman stupid? Perhaps naïve? Brainwashed by his less than Hebrewphile European hosts? Suffering from some sort of Stockholm syndrome?

I shan’t dwell on the many unsurprising accusations that have been hurled at Ambassador Gutman. He has been accused of being a self-hating Jew, a Jewish anti-Semite, a water-carrier for the President’s blatantly anti-Israel policies and a naïve dupe. I suspect that he is merely a very confused person who cannot believe that, only two generations removed from the virulent anti-Semitism that killed his father’s family, such unpleasantness could rear its ugly head in Europe once again.

Instead I wish to focus on one sentence in his dastardly speech and point out an awful aspect of his twisted reasoning that has escaped attention. Commenting in his myopic confusion about how events in Israel arouse the anti-Jewishness of European Muslims, Gutman asserts:

… every new settlement announced in Israel, every rocket shot over a border or suicide bomber on a bus, and every retaliatory military strike exacerbates the problem and provides a setback here in Europe for those fighting hatred and bigotry here in Europe.

So in addition to myopia, apparent self-hatred and Stockholm syndrome, Guttman is suffering from the affliction of moral equivalence. He cites four specific incitements: suicide bombings, rocket attacks on Israeli soil from Arab territory, Israeli military retaliation, but first of all – new settlements. Thus the premeditated assault on and murder of innocent Israeli civilians is as much a cause for concern as any Israeli attempt to defend its citizens or – heaven forbid – set up a kitchen on holy Arab land. Aggression is morally equivalent to self-defense. Murder is morally equivalent to building housing projects. Jihad is morally equivalent to the pursuit of Zionism.

Disgusting! And morally reprehensible.
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This post also appeared in The American Thinker at: