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Part II: What Do We Do About Legal Realism and Its Promotion of Judicial Activism?

Part II: What Do We Do About Legal Realism and Its Promotion of Judicial Activism?

In the previous installment in this two-part series, I surveyed how the theory of “legal realism” came to displace the traditional views of law shared by Anglo-American attorneys and judges. I explained that the Constitution’s provisions for the judiciary were drafted with the traditional views in mind—but once “legal realism” began to dominate legal thinking, the judicial system no longer worked as expected. Legal realist thought encouraged judges to engage in activist behavior not anticipated by the Constitution.

How, therefore, do we recapture our judiciary from the legal realists?

The first thing to remember is that the problem centers in specific institutions: American law schools and the higher reaches of the judiciary. If follows that any solutions have to focus on those areas. It is pointless to attack those not responsible for the damage, such as state trial court judges or lawyers generally.

Next, keep in mind that,  despite its name, “legal realism” is an ivory tower theory. Although one of its founders, Oliver Wendell Holmes, Jr., had substantial real-world experience, this is not true of most of those who spread the doctrine. These are mostly law professors with little experience in law practice, and even less in business and the economy. They often promote realist ideas because they picked them up in law school or because they think that’s what faculty at more prestigious institutions believe. These professors spread the doctrine through their teaching and law journal articles and other media.

Any cure for judicial activism has to be directed not merely at the offending judges but at the legal opinion molders who encourage bad judicial conduct.  On the other hand, you can’t address the law school problem merely by firing every realist faculty member: They are protected by the First Amendment, norms of academic freedom, political reality, and American ideas of fair play.

Here are some more practical reforms. Each has the advantage of making sense for other reasons as well:

Term limits on appellate judges and justices. A single long term for each judge would encourage appointment of somewhat older nominees, nominees more tested and shaped more by experience than by inaccurate theories. Abolishing lifetime appointments probably would reduce judicial arrogance as well. In another post, I addressed  reasons for imposing term limits on the U.S. Supreme Court.

Choosing appeals court judges primarily from trial court judges and from experienced attorneys rather than from academics or politicians. Aside from the occasional academic like Antonin Scalia, most appointments should come from the trial bench and from the ranks of outstanding private practitioners. We should avoid appointing former politicians to the Supreme Court; they tend to become activists.

Reduce the role of the U.S. court system. Nothing in the Constitution requires that Congress fund any federal tribunal other than the Supreme Court. In fact, among federal systems (Germany, Australia, Canada, etc.), America is relatively unusual in having a complete national court system parallel to those of the states.  Although state judges sometimes are infected with the activist virus, I suspect it is more prevalent among federal judges. If so, it might make sense to pare back the federal courts and rely more on state judiciaries.

Open up legal education to free market competition. Many states grant a monopoly on legal education to law schools approved by the liberal American Bar Association. States should permit aspiring lawyers to receive their education by the traditional clerkship method. They should permit law school accreditation by entities other than the ABA. Of course, the bar exam and associated licensing requirements should be preserved.

Establish higher standards for law professors. The following is a typical resume for a newly hired law professor:

  • Good grades at a prestigious school where most of the teachers lack real-world experience,
  • a year or two clerking for a judge or writing memos in a law firm not typical of practice generally (e.g., a Wall Street firm),
  • being hired onto a faculty.

Obviously a person with a resume like this is utterly unqualified to teach law students how to be good lawyers. Further, such a person is easy prey for silly theories.  State authorities should require that law faculty have significant experience in what they teach, especially at state law schools. States require extensive experience in licensing other professions (such as physicians), and even for skilled trades such as plumbers and electricians.

Require fairer hiring procedures for law professors. In addition to employing novices to do a professional job, law school hiring malpractice includes using politically correct criteria favoring certain ethnic groups and freezing out libertarians and conservatives. Law schools sometimes choose faculty with interests in fringe subjects (e.g., “gender studies”) over experts in subjects their students actually need (e.g., commercial law). This is another problem legislatures and boards of regents can address.

Require law professors to engage in real research and publish their findings. Much of the “research” in legal academia amounts to writing articles that are just fancy briefs for pre-fixed conclusions. Often a pre-set conclusion is some leftist canard the professor picked up as an undergrad.

University law schools are not playgrounds for mental self-indulgence. They are institutions with graduate-level status. Faculty research should be appropriate to that status.

Thus, law professors should be required to produce genuine, objective, peer-reviewed investigations into real world subjects. Examples include the influence of historical events on law, how anti-trust rules affect the economy, the psychological effects on jurors from specific courtroom procedures, and the effects on crime of sentencing guidelines. The goal is to push back the frontiers of human knowledge, and perhaps improve the legal system as a result.

Some law professors do valuable work of that kind, but most do not. If a professor wants to spend his days writing briefs arguing for constitutional rights for dolphins, then he should seek employment with a political advocacy group. He should not be taking up space on a research faculty.

* * *

A common theme connecting all these proposed solutions is “opening up the closet”—letting in the sunlight of fairness and from the real world. That is a tested prescription for dissipating arrogance and theoretical cobwebs. The difficulty is in letting the public know that the closet exists, and that we need to open it.

Hey, if Elizabeth Warren is Indian, then maybe I am, too!

Hey, if Elizabeth Warren is Indian, then maybe I am, too!

Atop St. Paul’s Cathedral, London

I confess to a several personal emotions in reaction to the Elizabeth Warren case.

Elizabeth Warren, if you recall, is the Harvard Law Professor now running for U.S. Senate in Massachusetts who identified herself to her employers and in law school directories as Native American. But it turns out that she has at most 1/32 Indian ancestry, and even that much can’t be verified.

First emotion: “I get it!”

Anyone who has been a law professor (as I was for 25 years) can understand the incentives for this kind of prevarication. Most law professors want to move up the professorial/professional ladder, and it’s a lot easier to do so these days if you can claim minority affiliation. It is very tough for white law professors to jump to higher-ranked schools (particularly males).

This is not speculation. At the point in my career when I was working my way up, faculty and officials at schools for which I was well-qualified admitted they were, as one hiring committee member phrased it, “Not in white male hiring mode.” After an especially egregious episode at another law school, I even went to the EEOC. But I never filed a claim because I knew it would absolutely terminate any hope of academic advancement.

Second emotion: Outrage. Professor Warren claims she didn’t tell Harvard about her purported Indian ancestry until after she was hired. But her credibility is shot; so assuming this is another untruth, it helps explain why Harvard—a school that does not commonly hire faculty with degrees from middle-level law schools like Rutgers—employed her. In one hire it gave them a double-jump forward in the “diversity” game: minority and female.

Third emotion: Wistfulness. With an Indian great-great grandmother (that makes me 1/16 Native American) and a father of Hispanic-Jewish extraction, I probably have more claim to minority status than does Elizabeth Warren. But I have never asserted minority status. Partly this has been philosophical, but partly it is because I have always thought that doing so would be ridiculous. Maybe I was wrong on latter point, because an even weaker claim proved sufficiently non-ridiculous to work well for Professor Warren’s career. After all, she wound up her academic life at Harvard, served in the White House as one of the President’s czars, and may yet be elected to the U.S. Senate. Not bad.

Fourth emotion: Relief—that I’m out of legal academia, and in the private sector working with people who judge people on their merits and don’t accept government funds.

Why law professors don't tell us much about our Constitution

Why law professors don't tell us much about our Constitution

Atop St. Paul's Cathedral, London
Atop St. Paul's Cathedral, London

(To learn more about this topic, listen to Justin Longo’s interview with Rob Natelson — “Why Such Biased Scholarship?“)

I’ve had some real successes uncovering the “original understanding” behind our Constitution. I did this while working in a small law school with a small library and little research support.

Many people have asked me why law professors at top institutions with lavish research support hadn’t already discovered what I have found. The answer, I think, lies not so much in understanding me, as in understanding them.

To uncover what the Founding Generation really thought about the Constitution, you have to really want to do it. If you think of legal scholarship as mostly promoting your political views, then you don’t reach for the truth. Instead, you forage around for historical scraps that support your pre-fixed conclusion, and once you find them, you quit looking.

As I point out in my book, The Original Constitution, that’s how many constitutional law professors seem to operate. That’s not just my opinion. Back in 1981, Columbia University’s Henry Paul Monaghan – himself a distinguished law professor – bewailed the tendency of law professors to subordinate good facts to a good argument. And it’s nearly as much of a problem today as it was in 1981.

It would be less of an issue if the professorate were politically diverse and paid primarily from private sector sources. In that situation, liberal professors would seek out facts that support their positions or please their donors, and conservative professors would do the same. But in fact law professors are paid mostly, directly or indirectly, with government money – including federal money – and therefore don’t have much incentive to scrutinize the constitutional basis for those expenditures. Politically, they are overwhelmingly “progressive,” which means that, while they say they believe in a “living constitution,” mostly what they want is a dead one.

Real scholarship is about facts, not argument. The principal reason I went into academia was to do real scholarship.  (It sure wasn’t the money!)  Yes, I like teaching, too, but that wasn’t a reason to give up my law practice, since Colorado colleges and universities were kind enough to give me all the part-time teaching I could handle.

So I decided to seek a full-time academic job.

Ever try to get a constitutional law position in academia if you are a conservative white male with a decade of real-world experience? Forget it. The fact that I was fully qualified – in fact more qualified than most applicants – to do constitutional research didn’t make it any easier.

So to become positioned to do constitutional research, this is what I had do first:

*    Get a job teaching other subjects;

*    publish and get tenure in those other subjects;

*    induce my superiors to allow me to branch out into legal history;

*    craft a legal history course that focused on the Constitution to respond to student preferences; this enabled me to keep up with the latest findings while preparing for class;

*    apply to teach Constitutional Law whenever the school had a vacancy;

*    after being rejected, apply next time;

*    after the fourth rejection, win a legal case against my superior;

*    teach constitutional law under intense scrutiny;

*    write articles without an adequate library (although with the help of wonderful librarians);

*    apply for a sabbatical so I could spend a semester at a university with adequate research libraries;

*    after being rejected, apply again;

*    appeal, as necessary;

*    finally win the sabbatical, travel to Britain and live there at my own expense, spending time burrowing in English libraries and consulting with English librarians; and

*    bring home a magnificent collection of notes and electronic sources that have served as the core of two subsequent books and over 25 major investigative articles.

You might understand why most people might not want to go through an experience like that.

That is why we won’t get much high-quality constitutional research until law schools leave the public-money trough, become more politically-diverse, and insist that legal scholarship be true scholarship. Until that time, what we are likely to get instead is mostly taxpayer-funded ACLU briefs, with footnotes.