The Volokh Conspiracy

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.