A Review of Schools for Misrule by Walter Olson
By Tom Palmer
Walter Olson's Schools for Misrule fills a gap, a gap which most folks in the legal academy will think merited preservation. The book is a survey of the legal academy's role in contemporary American life and the development of that role over the last century, and reads as a collection of "That's Outrageous!" columns. It will not be persuasive to readers on the left, because it assumes, rather than argues, that radical progressive ideas are misguided. It will be instructive to those in the center and on the right who are unfamiliar with the radical nature of the legal academy and its unduly influential role in America. The book is useful, despite a few weaknesses: (1) it completely ducks the question of what an appropriate role for the legal academy would be, and how it might be brought about, (2) the brief, un-nuanced nature of the survey leaves it ripe to rebuttal from—or dismissal by—sophisticated advocates of the radical positions and institutions he describes, and (3) it should have made better use of the University of Chicago.
Olson, the founder of Overlawyered, widely recognized as the first legal blog, as well as the Manhattan Institute's Point of Law blog, is a prominent advocate of tort reform and recently became a senior fellow at the CATO Institute. The book describes a number of problems with the legal academy. To list them semicomprehensively: it is the source of all kinds of influential and radically misguided ideas; it is ideologically unipolar; it is oriented too little toward educating students in the law and too much toward implementing radically misguided ideas via the judiciary (via other means than well-educated students); it systematically overvalues litigation as a means to policy goals; its professors and institutions are involved in ethically problematic ways with the litigation industry; its curriculum employs "public interest" litigation which is essentially one-sided political advocacy not in the public interest at all; it has overseen the erosion of expectation-friendly and cost-effective limits on standing, litigation timing, and so forth; some of these pathologies have had profoundly antidemocratic effects, even leading in some cases to international judicial rule over domestic politics.
Some of these complaints are in tension with one another. For example, clinical education is largely one-sided and ideological, but it does provide a sort of practical experience which addresses student complaints about too much philosophy and not enough law. Also, professors who spend their time doing side jobs for cash have less time to write articles for Yale Journal of Che Guevara's Queer Racebaiting and the Law. And teachers' ineffectiveness at teaching black letter law seems just as likely to contribute to less litigation (because attorneys are less effective at bringing novel cause-expanding theories) as to over-litigation. And the more that the radical left sticks to the academy, rather than to legal practice, the less effect it is liable to have through litigation—there's arguably something of a zero-sum game, given that these highly motivated leftists will be working somewhere, after all.
But most of all, it is simply not clear how to deal with almost any of the problems Olson cites. The most commonly-discussed element of his critique is the groupthink-risking ideological homogeneity of elite law schools, which is an evident problem. Even at the University of Chicago, known as a relative exception, try asking the average student whether one may rationally oppose gay marriage, or whether the Bush policy on embryonic stem cell research pitted science against religion, or whether it is illegitimate to regulate some stipulatedly harmless form of conduct on the basis that it is immoral (as opposed to violating Mill's harm principle). You will receive an answer which can only be a function of deficient engagement with diversity of viewpoints—respectively, "no," "yes," and an un-defended "yes." But what is the fix for too ideological homogeneity? Solutions seem like they would necessarily involve some sort of affirmative action antithetical to the ideas of most conservatives themselves. This is, of course, not a criticism of Olson, whose goal may be simply to raise appropriate awareness and skepticism of the legal academy, rather than to promote change in it. But problems beg for solutions. I suspect the only answer is for faculties to make a self-conscious effort to hire people with divergent viewpoints, but this probably already occurs to some extent, and part of the problem is the miniscule supply of conservative legal academics. As in other areas of the university, the reasons for the shortage are not clear, but it surely stems in part from the bias conservatives expect to face in the academy.
Olson devotes considerable discussion to legal clinics, institutions attached to law schools which provide, generally, hands-on practical experience in fighting for left-wing causes. It is probably true that clinics ought to be more ideologically diverse, if only to offer options more appealing to conservative students. Schools ought to install clinics which litigate on behalf of white-collar defendants whose assets have been seized, leaving them unable to pay for good defense, on behalf of landlords who are unable to evict reprobate tenants, on behalf of victims of scurrilous libel suits by the out-of-control plaintiff's bar, on behalf of the victims of federal habeas petitioners, and on behalf of students persecuted under unconstitutional campus speech codes. Yet at Chicago, which today houses something like nine broadly left-wing clinics, the Chicago Reader reported that the school's one non-litigation pro-entrepreneur clinic opened "to considerable controversy" in 1998 because, according to an anonymous clinical professor, "[i]t would alienate those students at the law school who aren't conservative, and the U. of C's reputation as a conservative think-tank would only increase."
It is hard to be optimistic about the future of ideological diversity at law schools when the most market-friendly—by reputation—of the top law schools has difficulty gaining approval for a non-litigation clinic that will assist indigent entrepreneurs. But more than just the bigotry of a few faculty contributes to this situation; there is also the sense, probably correct, that most of the students most interested in public-interest practice are in fact left-wing students. At least some of the imbalance is probably due to schools rationally meeting student demand, which comes mostly from the left, with the current lineup. Even if this is not the whole story, it may be a barrier to parity (and an argument against my contention that parity should even be a goal).
Another minor deficiency in the book relates to its discussion of the role of faculty witnesses in litigation, both in the courtroom and in public commentary on litigation, where they often act in advocacy roles under a veneer of impartiality. Olson provides ample anecdotes of unethical faculty providing dubious testimony for monetary gain. But precisely because these anecdotes are so entertaining and outrageous, it is disappointing to see Olson leave out one of the most outrageous examples, and the closest to home: Martha Nussbaum, who holds appointments in the Law School, the Divinity School, and the Philosophy Department. Nussbaum's case illustrates a significant point which would have merited more expansion: dishonesty and hackery in the courtroom are not merely the province of the financially self-interested professoriate at poorer schools; they're also the province of public-minded ideologues at elite schools.
Nussbaum was demonstrably dishonest on the stand and in filings in Romer v. Evans, and important constitutional law case in the mid-1990s. The claims of the plaintiffs (challenging a Colorado statute which prevented localities from making homosexuals a protected class) invoked complex questions of moral philosophy. Philosophers Robert George and John Finnis served as expert witnesses for the state, and Finnis's affidavit made claims about the positions of Plato, Aristotle, and Socrates on homosexual conduct; the plaintiffs called Martha Nussbaum as an expert witness in response, to argue that condemnation of homosexual conduct was inherently theological. In the course of her testimony, as Finnis and George later documented (in claims largely undisputed by Nussbaum), she systematically sought to deceive the court.
She testified that the translations used by John Finnis in his filings took a position that scholars could not reasonably disagree was wrong. Unfortunately, her position was directly contradicted by the universally-used relevant Greek-English Lexicon. Not to be deterred from the cause of justice, she referred (without acknowledging the fact) to the 1897 version of the lexicon (the only one she had lying around?), which she called "the authoritative dictionary relied on by all scholars in this area," and to which she had never referred in any of her published works. As it happens, Nussbaum always referred to the very version of the lexicon which offered the definition she claimed no scholar could reasonably believe to be correct.
The absurdities do not end here. Nussbaum's contention under oath was a misrepresentation even of the dictionary she herself had used under the false pretense of its being authoritative and widely-used. She fabricated a "consensus" about the word translated by others as "unnatural" from a single source which did not itself support her claim; she was forced to lie about that lonely source itself. She also omitted the fact that the authorities used most regularly by her in the very filings containing these lies disagreed with her about this alleged "consensus." Most ludicrously of all, she explicitly and repeatedly contradicted her own previously published work about Plato. The misrepresentions go on and on, with too many to recount; though she has never denied most of the allegations, Nussbaum has never recanted or expressed regret for trading academic integrity—and integrity generally—for the chance to help thwart democracy.
All these happenings probably turned out to be irrelevant to the case. Justice Kennedy is quite capable of manufacturing animus and willing away moral and philosophical reasoning. He did not need the assistance of Martha Nussbaum's lies; she sold her soul not knowing Wales was already in the bag. But the significant point is this: Martha Nussbaum was hired by the University of Chicago after this clearly-documented, uncontested abrogation of academic integrity. This fraud (though she is not a lawyer) is employed at our own university's law school.
It is true that she is not, like Northwestern's law professor Bernardine Dohrn, a convicted terrorist. I suppose we should be grateful that Northwestern bears the honor of employing Dohrn and we bear only the shame of granting her a law degree and appointing her, from time to time, to alumni committees. Together, Dohrn and Nussbaum epitomize everything contrary to the role of the legal academy, properly understood: one sought to subvert the rule of law through open rebellion and terrorism; one sought to subvert it through a perversion of the role of an academic and of a witness, misusing her credentials as a means certainly to lie, and almost certainly to commit perjury. It is difficult to imagine a more damning indictment of the extent to which the legal academy's ideological unipolarity have resulted in academic rot than that it is possible for people like these to be employed at top law schools, with nearly no one thinking to question their positions. If Schools for Misrule accomplishes nothing other than bringing to mainstream attention this morally horrifying state of affairs, it will do a great service.