Presidents come and go but so, as defenders of DACA ought also to know, do judges.
The Embedded Left-Liberal Assumptions of the Legal Academy
Samuel Moyn, a professor at Yale Law School, has written a critique of contemporary legal education, entitled “Law Schools are Bad for Democracy,” that has been widely praised. What is most striking are its unquestioned ideological assumptions that elite legal education should be a vehicle for progressive social change and for channeling lawyers into the “public interest” careers rather than work for large law firms. Some people have defended this focus by suggesting the essay is addressed to his fellow progressives but it is not presented as such, but it in fact makes more universal claims.
Moyn’s assumptions sadly do explain how the legal academy operates today. Professors are overwhelmingly left liberal and there is substantial evidence that conservatives and libertarians suffer discrimination. Moyn himself teaches at an institution where there is not one right of center faculty member tenured in public law. Moyn argues that much of the action in current legal education occurs in clinics rather than classroom. These clinics often focus on social change and the change is generally of the left-wing variety. But Moyn worries that clinics “legitimate injustice” by working incrementally within the system. For him, contemporary clinics are insufficiently cause-oriented and oppositional.
The assumption that law schools should have a left-wing orientation is deeply problematic. Universities should have as their objective the production of knowledge, not activism. A democratic society has other institutions that specialize in activism—political parties, many think tanks, and single issue pressure groups, and, for law, “public interest” litigation groups. But democratic stability is bolstered from having an engine that tries to discover truths even amidst its divisions of interest. And activism interferes with the university’s production of knowledge, because it leads directly to ideological discrimination and the erection of roadblocks of orthodoxy that impede truth seeking. To be sure, the law has a normative dimension, but norms also are a form of knowledge to which people can add and which they can refine. Thorstein Veblen thought that law schools had no more business in the university than schools of fencing, in part because they did not aim at producing knowledge. Moyn is proving him right.
The idea that law schools should steer students away from legal practice is an equally bad idea, particularly because it is bound up with another strand in Moyn’s essay—that law schools should imbue their students with a skepticism about the rule of law. This trope—drearily familiar from the critical legal studies movement—is obviously an ideological one as well. And in my view an indefensible one. To be sure, good societies have an imperfect commitment to the rule of law. But societies that lack that regulative ideal are truly dreadful ones.
Moreover, it is hardly obvious that lawyers at big law firms do not contribute more to society than cause lawyers, if one believes that the market economy does more in the long run for the poor than direct government intervention. By all means let this issue be debated, but law schools should not operate on a contrary assumption. Moreover, the contrary assumption will undermine the sense of proud professionalism that will allow many lawyers to lead happy and useful lives.
Moyn’s interest in making law schools school more effectively progressive does lead him to the sensible view that law schools should reduce the attention paid to judicial decisions as opposed to other forms of law. He says: “As dusk turns to night for progressive activism in the courts, law schools need to pivot away from judicially oriented activism to make room for a new kind of engagement with the public. “
Moyn is correct that law schools should not romanticize judges, even if his immediate impetus for giving up this romance is also ideological. Law is not the province only of judges but of legislators and of the public at large. But even here Moyn somewhat overstates his case, both because judges need to remain one focus of legal education and because modern legal education does not in fact only study how judges make law. First, law is a technical language and thus for one important aspect of legal practice—legal interpretation—judges will take the lead. Second, it is not the case that most professors teach law only as an exercise in what it takes to persuade judges. For instance, my antitrust course is mostly about understanding economic principles and strongly criticizing the mistakes in their judicial application, and my banking law course is an extended enterprise in figuring how our nation can reform the dangerous fragility of its financial system.
In the nineteenth century the case method was indeed the sum and substance of legal education. Now there is a welcome plurality of methods. If only there were a greater plurality of jurisprudential and political economy perspectives! Sadly, Moyn’s essay shows that left-liberalism is so ingrained in the legal academy that this kind of genuine pluralism will not appear for many generations. And that is the real problem law schools pose for the university and democracy.