Thoughts on Steven M. Teles, "The Rise of the Conservative Legal Movement": I recently finished Steven M. Teles's new book, "The Rise of the Conservative Legal Movement," and I thought the VC audience might be interested in hearing about it. The book is a work of political science that looks at the major institutions within the conservative legal movement and tries to explain what makes them successful — or, in some cases, why they are not as successful as planned. You can read the introduction here, and see the Table of Contents here.

  The book's starting premise is that 30 years ago, when all of the major legal institutions were left/liberal, conservative and libertarian activists set about trying to create conservative/libertarian institutions to counter them. The book focuses heavily on what Teles sees as the leading institutions that have resulted, such as The Federalist Society, the Institute for Justice, the Center for Individual Rights, law school centers of law & economics (many funded by Olin), and George Mason University Law School. Teles' interest is in how these organizations got off the ground, what makes them successful, and what role they play. Much of the book is drawn from interviews with the founders and directors of these various institutions; Teles also draws a great deal from access he was given to their historical files.

  I found several parts of the book quite interesting, but the most interesting to me were the parts on the Federalist Society (p135-180) and George Mason University Law School (p207-219). On the Federalist Society, Teles argues persuasively that the key to its influence is in hosting a "big tent" that is open to a wide range of conservative and libertarian ideas. As Teles tells it, the Federalist Society is influential because provides a way for dispersed conservative and libertarian law students and lawyers to identify each other, get to know each other, and to establish an intellectual identity apart from the left/liberal views that tend to dominate the law schools. Teles also argues that the key to the Society's role is that it hosts debates rather than takes positions; this enables a wide range of different views to feel at home, while also focusing attention on the long-term development of ideas.

  The coverage of George Mason University Law School was fascinating in part because I knew little of the school's unusual history. Teles explains that the new George Mason University in Virginia had started a law school (in 1979) by picking up a low-ranked local law school in DC. In an effort to create a stronger law school, the University later hired law and economics scholar Henry Manne to be the new Dean of the school and gave him unusual powers to create the law school he wanted. As Teles tells it, the law school became Henry Manne's project to build a law school entirely around a libertarian vision based heavily on law and economics:
Henry Manne's project of building George Mason University law School (GMUSL) represented a very different approach to influencing the legal academy — building an alternative institution from the bottom up rather than influencing the legal academy from the top down. While the Olin programs [of law and economics at elite schools] represented a "Fabian" strategy of slowly burrowing into mainstream institutions, GMUSL followed a "Gramscian" approach of creating a parallel institution where more libertarian professors could hone their ideas without the compromises associated with elite institutions. [p.207]
  Teles contends that this experiment is moderately successful so far, although to some extent the jury is still out. On one hand, the law school has stayed largely true to its original vision, and it has made "impressive achievements" with its faculty and the U.S. News Rankings. On the the other hand, Teles contends that it's too early to say if Mason will establish itself fully as a counter to liberal institutions (and especially, more elite ones). I gather three of my co-bloggers will have some thoughts on that.

  I don't expect this book to become a best-seller; it's a serious work of political science, not a pop history. And of course the arguments Teles makes are certainly open to debate -- I'd be particularly interested in hearing from my Mason-based co-bloggers on whether they thought the coverage of Mason was accurate and/or fair. But on the whole I think this is a pretty interesting read for those who either are a part of or are just generally interested in the particular institutions that Teles is describing.
Teles's The Rise of The Conservative Legal Movement:

I've just read this book, and it's very interesting, and recommended to anyone interested in, well, the rise of the conservative legal movement.

I should note, however, that the book is not a comprehensive look at its subject matter. The book focuses on the intellectual and organizational history of law and economics, select (non religiously based) conservative public interest firms, and the Federalist Society. You won't find much if anything here about, to take some examples off the top of my head, Reagan's appointment of prominent academics such as Posner, Easterbrook and Winter to the federal appellate courts, clerkship selection by Justice Scalia, the Manhattan Institute's civil justice program, the role of the Institute for Humane Studies in nurturing future libertarian and libertarian-ish law professors, the nomination of Clarence Thomas to the Supreme Court, the Rutherford Institute, or Regent Law School, among many other pertinent subjects.

I'll have some more detailed comments over the next several days. But I'll start with the one "correction" I have from personal knowledge. Teles attributes the idea for the Federalist Society's Olin fellowships entirely to Professor Gary Lawson. Lawson was responding to a query from Gene Meyer, the Society's president, regarding how the Society could most efficiently help its members pursue academic careers. I had a very similar conversation with Meyer, responding to the same query. Having spent the 1994-95 academic year as a research fellow at Columbia Law School, I made the same suggestion independent of Lawson. I don't know who suggested it first, and it's entirely plausible that Meyer was far more impressed with Lawson's "pitch" than with mine. Still, while it's not exactly like I came up with a cure for cancer, I'm proud of the successes of the fellowship alumni.

The Influence of the Olin Programs in Law and Economics at Yale Law School and Otherwise:

In The Rise of the Conservative Legal Movement, Steven Teles discusses the success of the John M. Olin Foundation programs in helping to establish law and economics as a force to be reckoned with in American law schools, especially at the elite schools.

Undoubtedly, the Olin programs were a great success on many levels. Teles notes, however, that as law and economics became more "mainstream" it also began to take on certain mainstream characteristics that are unlikely to be pleasing to those who ran the Olin Foundation: like academic economics, it has come to be increasingly dominated by moderate liberals, not the free marketeers preferred by Olin, and, like academic economics, it has become increasingly mathematically oriented and therefore less directly of interest to noneconomists in the legal academy who don't "speak the language."

Nevertheless, when I read work from other disciplines, or attend interdisciplinary conferences, like the annual American Society for Legal History conference, the effect of the spread of economic sensibilities on legal academia is rather apparent. Historians and others not affiliated with law schools are far less likely to be sensitive to economic reasoning, including public choice reasoning, than are law professors with similar interests, and far more likely to throw out vague phrases with obvious economic connotations without defining their terms.

To put it another way, I suspect that at most respectable American law schools, a speaker presenting a paper on 19th century labor reform who talks about "exploited workers" will be asked to define what he means by "exploited," if he didn't already anticipate that question in his remarks. From my experience, in other disciplines not only would such a speaker not likely be asked to define the term, the speaker wouldn't be able to provide a rigorous explanation if asked, and indeed had never considered what "exploited" means beyond the idea that any poor worker can be deemed exploited in a quasi-Marxian sense. Similarly, in law schools, unlike in history departments, a speaker who presents a paper about the historical triumph of some seeming good cause will likely be asked whether there is an alternative "public choice story" casting some doubt on the public-spiritedness of the relevant campaign. When I was a new professor in the mid-90s and attended ASLH conferences with my George Mason affiliation displayed on my name tag, I occasionally got comments from older attendees along the lines of "George Mason! Hmmph! I hope you [law and economics] people aren't planning to do to legal history what you've done to other subject areas."

Teles also points out that when Olin funded programs at elite law schools, it had very limited control over how its money was used. Olin officers, however, figured that economics was inherently more "conservative" and "scientific" than the vast majority of what was going on in law schools, so diverting resources to law and economics would be most likely be beneficial to its cause.

While that was likely true, in some cases it's hard to see that Olin got much bang for its buck. For example, Teles quotes a 2000 memo from the Foundation expressing great satisfaction over the success of its fellowship program at Yale Law School, noting, for example, that "sixty-one former JMO [John M. Olin] Fellows hold professorial positions at American law schools." Teles suggests that "some of this perceived success with students was simply a function of attaching the Olin brand to future lawyers who would have ended up succeeding regardless."

That, in my experience, is an understatement. My understanding is that at other law schools, Olin Fellows received special financial assistance, attended special seminars, and otherwise received benefits that other students did not, thus tempting some of the most promising students into exploring, or retaining an interest in, law and economics. At least when I went to Yale, this wasn't true. Yale had a strict policy that the Law School gave only need-based financial aid. So, Olin money was used to provide financial aid to students who would have otherwise received financial support directly from the law school. The result was no net additional aid to Olin Fellows, and the freeing up of law school resources for what Olin would likely have thought to be generally nefarious purposes.

Moreover, I was an Olin Fellow, and I don't recall any other particular benefits to, or requirements of, the fellowship, other than an annual invitation to attend a reception at one of the co-directors' houses. There was a weekly law and economics workshop that students could attend as a one-credit course, but my recollection is that this workshop was open to all students, and was not mandatory for Olin Fellows.

That's not to say that Olin had no effect on the Yale Law School. It funded the important faculty program run by George Priest (and co-directed by Susan Rose-Ackerman when I was there), and also provided stipends for Summer research for students interested in law and economics. And perhaps the tens of thousands of dollars Olin annually spent on student scholarships was necessary to persuade skeptics on the law faculty to tolerate the presence of the general Olin program.

In any event, it's true that having the Olin fellowship on one's c.v. provided a signal to potential future employers, including judges and hiring committees, that one had an interest in, and perhaps a talent for, law and economics. But it's unlikely that the fellowships themselves significantly changed the career interests or trajectories of their recipients. I was somewhat surprised to discover that the staff at Olin apparently believed otherwise.

Steven Teles' The Rise of the Conservative Legal Movement:

Steven Teles' new book The Rise of the Conservative Legal Movement is an important and insightful account of conservative and libertarian efforts to influence the law, legal institutions and the legal academy over the last 30 years. It does a good job of explaining the successes and failures of the institutions it discusses (primarily the Federalist Society, the Olin Foundation, and libertarian public interest law firms such as the Institute for Justice and the Center for Individual Rights).

As David Bernstein notes, the book is not a truly complete discussion of the subject implied by its title. Indeed, it is really more of a study of libertarian public interest organizations and academic movements than of the right of center legal movement more generally. With the exception of the Federalist Society (which, as Teles correctly notes, deliberately maintains "big tent" neutrality between libertarians and conservatives), most of the major institutions profiled in the book are either explicitly libertarian (such as IJ) or primarily focused on advancing the libertarian elements of the conservative agenda (such as CIR and various law and economics programs).

The book pays little attention to right of center legal institutions motivated primarily by religious considerations (such as Regent Law School, the Rutherford Institute, etc.) or to the social conservative backlash against liberal efforts to use the courts to protect "obscene" speech, extend abortion rights, and limit government "entanglement" with religion. Teles does note that these causes have gained relatively less ground in the academic and public interest worlds than libertarian ones and suggests that courts might be better vehicles for efforts to limit government power (as libertarians seek to do) than for efforts to expand or protect it (as social conservatives wish to do in those areas where they disagree with libertarians). This is an intriguing thesis, but warrants more systematic discussion than Teles is able to give it in this book. A greater focus on social conservative legal movements might have enriched Teles' analysis and provided him with a good comparative foil for assessing the more libertarian organizations he focuses on.

Despite this limitation, Teles' book is still by far the best academic analysis of recent right of center efforts to influence the law. In upcoming posts, I'm going to consider Teles' insightful analysis of particular institutions in more detail.

UPDATE: I have removed the Becket Fund for Religious Liberty from the list of conservative legal organizations motivated primarily by religious considerations. As Eric Rassbach of the Becket Fund pointed out to me in an e-mail, the organization is in fact secular in nature, even though it focuses on protecting religious liberties.

The Rise of Libertarian and Conservative Public Interest Law:

From the 1930s until the late 1970s, the field of public interest law was dominated by liberal groups such as the ACLU, the NAACP, the Lawyers Committee for Civil Rights, and the Sierra Club. Since then, libertarian and to a lesser extent conservative public interest firms have had a major resurgence. Organizations such as the Institute for Justice and the Center for Individual Rights have achieved some impressive legal and political victories. IJ's Supreme Court cases include Kelo v. City of New London and Granholm v. Heald (the interstate wine shipment case). CIR litigated Rosenberger v. University of Virginia, United States v. Morrison, and Grutter v. Bollinger.

Steven Teles' important new book, The Rise of the Conservative Legal Movement, does an excellent job of analyzing and explaining the growth of non-liberal public interest law. He notes that the success of libertarian and conservative public interest law groups was not foreordained. Indeed, early efforts in the 1970s and early 80s were mostly dismal failures. How did the founders of IJ and CIR turn things around? Teles notes two important causes: the second generation of libertarian public interest firms learned from the the strategies of their liberal predecessors and distanced themselves from business interests.

I. Learning from the Left.

Clint Bolick and William Mellor, the founders of IJ, deliberately copied the tactics of the NAACP Legal Defense Fund. Like the LDF, IJ seeks out sympathetic clients (often minority homeowners or entrepreneurial small businesses) for its economic liberties and property rights cases. This is part of IJ's more general strategy of fighting in the court of public opinion as much as in the courtroom. Even when IJ loses a case in court (as happened in Kelo), they often win in the long run by generating a political backlash and by undermining the previously existing elite consensus supporting status quo jurisprudence. The effort to seek sympathetic clients and influence public opinion was consciously copied from similar initiatives by the NAACP during the years leading up to its victory in Brown v. Board of Education. For example, in choosing clients for cases charging racial discrimination in criminal law, Thurgood Marshall would usually try to represent only those defendants who were likely to be innocent and therefore make a more favorable impression on white public opinion.

By contrast, Teles claims that the Center for Individual Rights pursues a more narrowly "legalistic" approach, seeking to make the strongest possible legal case, with relatively little attention to the attractiveness of the client or to public relations concerns. This strategy is similar to that of the ACLU in its early years. For example, CIR's clients in United States v. Morrison were rapists, a type of case IJ might have been reluctant to take.

Which strategy is better? Both have been successful and there is no need to make a categorical choice. IJ is surely right to emphasize the importance of public relations and sympathetic clients. CIR, however, correctly recognized that you can sometimes win important cases even with unattractive clients; sometimes, clients who won't look good in the press have the strongest legal cases. Overall, however, I think that IJ has been somewhat more successful. Although CIR has won as many or more important courtroom victories, IJ has been more effective in leveraging its courtroom victories (and even its defeats) into actual changes in the real world. For example, IJ's campaign against eminent domain has almost certainly had more effect in constraining the powers of goverment than CIR's effort to curtail government-sponsored affirmative action. IJ's strategy takes more account than CIR's of the reality that the impact of judicial decisions is often determined as much outside the courtroom as within it.

II. Independence from Business Interests.

Libertarian and conservative public interest law firms are often denounced as mere shills for business interests. Ironically, however, Teles shows that the success of these groups required them to reduce their ties to business. Early conservative public interest firms established in the 1970s often had close ties to business groups, such as state chambers of commerce, and were often funded by corporations. This created two serious problems. First, the press and public opinion could stigmatize the groups as the shills they to a certain extent were. Second, and even more important, business interests often conflict with the conservative and libertarian agenda of limiting government power and protecting free markets. Many businesses actively support government regulations that suppress their competitors or grant them special privileges and favors. Teles shows that early conservative public interest firms sometimes had to drop promising economic liberties cases because they conflicted with the self-interest of powerful business backers.

IJ, CIR and other "second generation" libertarian public interest firms learned from this mistake. Instead of depending on business groups for funding, they relied mostly on donations from ideologically motivated individuals and foundations, backers that mostly lacked a narrow self-interest in the litigation pursued by the public interest firms they backed. Today, much of IJ's litigation agenda in property rights and economic liberties is often opposed by powerful business interests. For example, as I argue in this paper, developers and other politically connected businesses benefit from the types of "economic development" and "blight" condemnations that IJ litigates against.

It is somewhat surprising that it took so long for right of center public interest lawyers to realize that business interests weren't necessarily their friends. As far back as Adam Smith, free market advocates have recognized that many business interests benefit from the expansion of government regulation and routinely lobby for special favors from the state. It was Smith, not Ralph Nader, who wrote that businessmen "never gathered together even for a social purpose save to conspire against the public interest." More recently, Milton Friedman, Mancur Olson, and especially the public choice economists have all emphasized the role of business interests in expanding the role of government whenever it was in their narrow self-interest to do so. Unfortunately, right of center public interest lawyers had to learn this lesson the hard way. This is one area where real world lawyers could have saved themselves a lot of trouble by reading the academic literature on business-government relations produced by denizens of the ivory tower.

Despite the important progress that has been made, Teles argues that the libertarian and conservative public interest law movement still has significant weaknesses. In an upcoming post, I'm going to focus on the most important of them: the lack of adequate "follow up" litigation to exploit major courtroom victories.

CONFLICT OF INTEREST WATCH: Over the years, I have done a considerable amount of pro bono work for IJ.

Conservative and Libertarian Public Interest Law:

I look forward to Ilya's next post on the rise of conservative public interest law. Meanwhile, I though I'd chime in with my own comment on Steve Teles's take on the Institute for Justice and the Center of Individual Rights.

First, let me acknowledge that I'm a huge fan of both organizations, and have friends who work at each of them. Nevertheless, having followed their progress from the beginning, I perceive of some weaknesses and missteps that Teles ignores.

To take one major example, when I was a visiting professor at the University of Michigan, I had Dean Evan Caminker guest lecture to my Constitutional Law class on the Grutter/Gratz affirmative action litigation. Among other things, Caminker provided a very persuasive analysis of why suing the University of Michigan, as opposed to other possible targets, was a strategic blunder by CIR. Not least, the University was able to spend virtually unlimited funds defending itself without asking the state legislature, which would not have been true for most state universities. A far more congenial target would have been a university that needed special funding from the leglisature to fight CIR, along with an unsympathetic legislature.

Teles, however, seems to have relied primarily on interviews with the principals in these organizations, along with the access he received to their internal documents. This certainly provided him with many interesting insights, but I think also meant that a certain objective outsider perspective is lacking.

Steve Teles Responds:

Steve Teles, author of The Rise of the Conservative Legal Movement, has sent me a reply to some of the criticisms of his arguments that David Bernstein and I have made. In particular, he responds to our claims that he didn't pay sufficient attention to the social conservative wing of the movement as opposed to the libertarian one. It is ironic that two libertarians should make this particular criticism. But I think it's hard to analyze the libertarian/conservative legal movement as a whole without taking due account of its social conservative element.

The response is a bit lengthy for a blog post, so I put it below the fold. But scholars and others interested in the history of the conservative and libertarian legal movement should find it of great interest:


Interview with Institute for Justice President Chip Mellor:

By coincidence, our discussion of the development of libertarian public interest law is happening at the same time as the publication of this interesting interview with Institute for Justice President and co-founder William "Chip" Mellor. IJ is, of course, the libertarian public interest firm that litigated Kelo v. City of New London, Norwood v. Horney, and other important property rights and economic liberties cases. Of relevance to our discussion is Chip's emphasis on the way in which IJ deliberately chooses cases that can make an impact outside the courtroom as well as within it (a point I noted in this post):

All of our cases are deliberately designed as platforms to educate the general public about the importance of what may seem to be unique or even arcane issues and why those issues affect many, many people beyond the particular case, both in terms of the situation and also in terms of the constitutional principle involved.

My main complaint about the interview is that Chip didn't get a chance to discuss the fact that he, like me, is a huge Red Sox fan. Clint Bolick, the other co-founder of IJ, is a Yankees fan. As a general rule, however, there may be some correlation between rooting for the Red Sox against the Evil Empire of the Bronx and support for libertarian legal causes.

CONFLICT OF INTEREST WATCH: As I have noted in the past, I have done a great deal of pro bono work for IJ over the years.

The Biggest Weakness of Conservative and Libertarian Public Interest Law:

In previous posts, I have discussed the rise of conservative and libertarian public interest law, chronicled in Steve Teles' recent book, The Rise of the Conservative Legal Movement. As Teles shows, groups like the Institute for Justice and Center for Individual Rights have made major inroads in a field once overwhelmingly dominated by the left. However, as Teles notes, the conservative/libertarian public interest movement still has one major weakness relative to its liberal rivals: the comparative paucity of lawyers available to litigate "follow-up" cases that enforce and build on major favorable precedents.

This is a very important shortcoming. One of the most powerful findings of social science research on judicial review is that even the most important precedents don't enforce themselves. Government officials and interest groups will generally do all they can to evade or ignore judicial decisions that restrict their powers. It took some twenty years of follow-up litigation (not to mention congressional intervention) to force southern public schools to obey Brown v. Board. There are many similar, even if less extreme, examples. In some cases, necessary follow-up litigation can be conducted by business interest groups with a financial stake in the outcome. For example, abortion clinics did some important follow-up litigation after Roe v. Wade. However, this will rarely be true of cases where the most important beneficiaries of a decision are poor or politically weak. In such situations, pro bono efforts by private attorneys can play a crucial role. And the poor and politically weak are the most important potential beneficiaries of libertarian public interest efforts in the fields of economic liberties and property rights, among others. The wealthy and powerful can usually defend their property rights and other economic interests in the political process and therefore have much less need for judicial protection.

As Teles describes in his book, liberal public interest lawyers can rely on an extensive network of attorneys in private law firms and bar associations to do follow-up work for them on a pro bono basis. Despite some modest efforts to create a parallel network, conservatives and libertarians lag far behind in this field. It is no accident that top lawyers at both IJ and CIR identified this as probably the most important weakness of right of center public interest law.

There are several possible explanations for this disparity, some of which I may discuss in a future post. But whatever the explanation, it's a serious problem that needs greater attention. Over the years, the Institute for Justice has tried to address by creating its "Human Action Network" to stimulate pro bono efforts, and by sponsoring summer clerks and law student conferences (my own interest in property rights issues stems from my time as a n IJ summer clerk in 1998). However, a great deal remains to be done, and no one group can possibly do it by itself.

UPDATE: Tim Sandefur of the Pacific Legal Foundation (a prominent libertarian public interest law firm) responds to this post by noting that PLF does do some important "follow up" litigation, and that it's not realistic to expect them and other similar groups to do much more of it, given resource and time constraints. I think Tim perhaps misunderstands my point (which may be a consequence of my not explaining it as well as I should have). It's not that PLF and other public interest firms should do the follow-up litigation themselves, but that there should be an infrastructure for having it done by outside lawyers (such as pro bono lawyers working at ordinary law firms); this is how liberal public interest "follow up" work gets done. I recognize that it's impossible for public interest law firms to do more than a small number of such cases on their own. That's precisely why they need a network of outside supporters to help them with it.