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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.

Reader Discussion

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on December 21, 2018 at 09:20:33 am

Bravo! Merry Christmas, Professor McGinnis, and carry the truth happily into the New Year!

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Mark Pulliam
on December 21, 2018 at 10:01:03 am

There is something wrong with law schools all right, but it isn't what Moyn or Duncan Kennedy (one of my own professors and about as far from an Antifa-style radical as one could get) before him complain of. What's wrong with law schools is that they exist first and foremost for their faculty, and only secondarily for their students.

Law faculties have knitted themselves into a guild by abusing legal analysis and interpretation for their own psychic and economic benefit. I have a volume of "famous" law review articles from the late 19th - mid 20th century, and the number of citations therein to other law review articles or even to anything is minimal. In those days, professors actually thought and made assertions independently of whether any other professor somewhere had asserted it. Today--and this was the case 30 years ago--virtually every single sentence in any law review article is footnoted. A 20-page article might have 300 citations. Often, the citation is merely generally to another, contemporary law review article. The professional agreement amongst the guild members is that it is illegitimate, invalid and, most importantly, discourteous in the extreme, for any article writer to make any statement or assertion whatever to offer any thought of his own, unless some other professor has already made it or has said something that at least vaguely "supports" the writer's assertion. As with journalism, "the law" develops merely by voluminous cross-citation: if enough professors cite each other in a Great Circularity, then that is what the law "is." But the impetus for this Circular Universe is not by any means a belief that so many professors have something truly novel or significant to contribute, but rather professional career maintenance; you gotta give citations to get citations, the law faculty version of Congress's you gotta go along to get along.

The area where this is the most visible and egregious is "international law," in which one can see "law" being invented daily ex nihilo by professors all cross-citing and agreeing with one another in their speculations and musings, as it is far more important to each that they succeed collectively in inventing and entrenching the being and existence of something they call "international law" than the specific properties of their inventions.

Seeing law professors in their writings swear off comment on any matter if it is not squarely within their increasingly narrow "field of expertise"--in other words, conceding what might be and probably are preposterous arguments and interpretations of other law professors so that they don't attack yours--is maddening. And this is how the law becomes so "technical" and esoteric. What a doctrine is and whether a new doctrine or a change to the old doctrine is even necessary is of no importance; what matters is that there be many, many doctrines, new doctrines every day. The question whether intellectual progress has been made is hardly asked; it is simply assumed. Change for its own sake. How else can one know one is alive?

Anyway, I know this will be a great affront to the law professors whose blog this is, but there it is. And it is hardly unique to law faculties.

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QET
on December 21, 2018 at 10:28:36 am

Intellectual arteries harden quickly enough when you graduate from Harvard Law School. Thank goodness for time when you get to consider what the law could do rather than what the law is. If this is what progressive legal education is supposed to be doing please continue it.

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Marjory Gibson Haskell class of64
on December 21, 2018 at 10:57:38 am

Nice.
Simpler and sounder, just "left."

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Daniel Klein
on December 21, 2018 at 11:08:36 am

Oh for the modesty of Prof. Lon Fuller's "eight ways not to make law", in The Morality of Law (1969). The demands now made of "law" by the Academy seem preposterous to me. But I am a mere laborer in the vineyard of law; not a tastemaker.

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Robert Scully
on December 21, 2018 at 11:50:28 am

And apparently, properly so I may add, not a Toastmaster to the new and ever *improving* law.

Bully for you!

I would add that as for "what the law can do", one would suspect that such an approach would, of necessity, be inherently frustrating, as the Law CAN ALWAYS be something other than what IT IS; consequently, much effort is expended in overcoming the frustration that the law is NEVER, nor will it ever be, what one PRESUMES to know that it can be.

Thus, the stealth *cleverness* of the breed. We all would do better were we not so enamored of *cleverness* and as QET asserts professional maintenance, if not advancement.

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gabe
on December 21, 2018 at 12:02:30 pm

Every so often I get a call from a First Year law student raising money for the school. I do not know whether it is by random choice or a deliberate assignment by someone who wants the student to get a dose of cynical reality from a curmudgeon who has grown weary if activist lawyers. I had my time when I thought of class actions as the way to change society. I was, however, no more at home in the PIRG community than in corporate law. I drifted away from law and ended up in labor relations and management in a government agency to pay the bills and do art on my own time. Over the years I realized that quiet commerce is endangered by both governmental action and by private dogood legal maneuvering,

As a consequence, the innocent young freshman who has not yet been fullly indoctrinated by the activists but is enthusiastic (I remember a young woman telling a group, "I'm into the environment, feminism and everything radical" back in 1971.)) Anyway, I use these solicitations as a platform to question the efficacy (and ethics) of class actions, punitive damages and judicial acrobatics in a free society and a republic. I tend, of late, to doubt what good I am doing by this, but like the little bird trying to hold up the sky--it makes me feel like I am doing my part.

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Earl Haehl
on December 21, 2018 at 15:09:12 pm

Professor McGinnis' thoughtful commentary has induced in me both a bout of nostalgia for what the venerable profession of law, the education and practice of lawyers, once was and might yet have been and a burst of melancholia over what it has become and, alas, will always be.

Its high-minded dignity, intellectual honor and existential value as defender of the constitution died when the profession of law sired an academy comprised of "three generations of idiots," ideological maniacs who, over 50 years, committed patricide against the very profession which gave them license, their slow strangulation of the virtue and vitality which vouchsafed the profession life no less fatal to the nation than if its warrior class had deployed instructors at West Point and the Naval Academy to teach the moral imperative of revolution and to incite cadets to riot against their country.

Professor Moyn personifies the "three generations of idiots" of whom I speak, and his "worries that clinics 'legitimate injustice' by working incrementally within the system..." exemplifies the fatal conceit of which I speak.

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Image of Pukka Luftmensch
Pukka Luftmensch
on January 11, 2019 at 05:52:12 am

[…] A now common left-wing defense of the imbalance of right and left in the academy is that the academy tends to be left-liberal because it rewards innovative thinking whereas the right is hidebound and defends the status quo. Here for instance are some of the comments of a law professor on a reprinted version of my piece, The Embedded Left-Liberal Assumptions of the Legal Academy. […]

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Image of How the Academic Left Caricatures The Right as Defenders of the Status Quo
How the Academic Left Caricatures The Right as Defenders of the Status Quo
on April 12, 2019 at 05:17:13 am

[…] have noted before, some professors at leading law schools seem to believe that their schools should in fact aim at left-leaning social justice. Schools also are doubling down on hiring a “diverse” faculty with regard to race, […]

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Image of How the Academy and the Mainstream Media Contributed to Polarization
How the Academy and the Mainstream Media Contributed to Polarization
on April 29, 2019 at 06:03:23 am

[…] ideological, although the product of the academy is supposed to be knowledge rather than activism [John McGinnis responding to Samuel Moyn] Outcry after Emory Law School suspends professor who had uttered racial […]

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Image of Campus speech roundup | Overlawyered
Campus speech roundup | Overlawyered

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.