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Monday, August 06, 2012

The First-Year Courses Are the Only Areas of Law That Don't Need Permission to Exist

Walter Olson, lately standing athwart the legal academy and yelling stop, gained some attention last month (including on this very blog) by calling for the abolition of law reviews. In my personal taxonomy of conservative hatchet men, Olson stands out for his belief in the singular power of law professors to control the direction of American civil society:

The work of legal scholars, as we will see, has revolutionized (or created from scratch) whole fields of law, from product liability to sexual harassment to class action law...Anyone who takes part in the world of public controversy, from Capitol Hill staffers to radio hosts, is swayed directly or at a remove by the climate of opinion in legal academia. "[W]hat is taught in the law schools in one generation" - so a celebrated law professor once put it - "will be widely believed by the bar in the following generation" - and, by way of the bar, will come to be believed by many of the rest of us.

In Olson's telling, law profs enjoy a position as intimate and persuasive to power as the Maesters of Westeros. Maybe that's closer to reality for Cass Sunstein than it is for the rest of us, although not for much longer. I would love to wield the power Olson and his cohort dream that I have, as a clinical educator with a litigation docket. I suppose that has been the forlorn wish of many past bugaboos of the right. 

Most interesting to me is the idea that dastardly liberal law scholars are responsible for the creation of whole new areas of law "from scratch"  - as opposed to Founder-approved pre-mix? - because that sort of strikes at the legitimacy of every one of us who devotes our time to teaching something other than a first-year course (and, I guess, corporations).

What this complaint about new areas of law being created whole-cloth reminds me of is the notion, which first came to me in law school, that the first-year curriculum constitutes the only areas of law whose existence conservatives broadly accept as legitimate. In his famous article All Quiet On the Eastern Front, Richard Epstein memorably summed up the reasons why "property, contract, and tort...enjoy such great temporal durability in the common law," namely that they address the perennial human conditions of scarcity and self-interest:

The first mission of the legal system is to determine an initial set of property rights from which subsequent bargains can go forward at reasonably low cost. The second mission is to insure that these entitlements once established are protected against various forms of theft—the office of the law of crime and tort. The third mission of the law is to facilitate the voluntary exchanges of property rights—the law of contracts.

There's your first-year curriculum, once you add Civil Procedure, Constitutional Law and (maybe) Administrative Law. Under this worldview, and accepting that Epstein thinks at least some of the Civil Rights Act was justified law-making, my entire practice area of labor and employment law (we call it "Workplace Law" hereabouts) is one of those considered to be "created from scratch," that shouldn't exist as it does. It makes me wonder whether pharmacists, engineers, or architects are accused of creating more work for themselves just by doing what they do.

Union-side labor lawyers, as I was a decade ago upon first graduating from law school, are regularly reminded of the withering of the law that was (arguably) written to protect their clients. My continuing inhabitation of the conceptual frame, that of a specialist practitioner in a field seemingly withering on the vine, is what fuels my interest in Reconstruction (that, and a longstanding fascination with the Civil War). Reconstruction is the historical period from which Section 1981, the oldest of the anti-discrimination laws that I use for my clients in my clinical practice, originates. How the lessons of this period might inform our present-day justifications for these laws will be the subject of my next post.

In the meantime, enjoy the view from Mars.

Posted by Raja Raghunath on August 6, 2012 at 09:44 AM | Permalink

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Raja writes: "the first-year curriculum constitutes the only areas of law whose existence conservatives broadly accept as legitimate." Can you tell us a bit more what you mean? Off the top of my head, I don't think I can recall any conservatives saying that areas of law are not "legitimate."

To be sure, there are conservatives who are critical of some specific classes and ways that they are taught in most law schools today -- for the most part, the criticism is that these classes are about political activism instead of law, as Olson would argue. And there are conservatives who would prefer the law to be different, such that certain courses that exist today to study certain statutes wouldn't exist because the relevant statutes wouldn't exist, which seems to be Epstein's view. But I can't recall conservatives saying that areas of law are "illegitimate" or need to be specially justified. But perhaps I just misunderstand you.

Posted by: Orin Kerr | Aug 6, 2012 1:03:29 PM

I don't agree with everything he writes, but Walter is thoughtful and polite. He hardly deserves to be called a hatchet man. If he hasn't appeared at your school to speak about his book, invite him and see for yourself.

Posted by: John Steele | Aug 6, 2012 2:58:00 PM

Prof. Steele, in business, the hatchet man is the one given the unpleasant task of carrying out cuts. George Clooney was quite affable as one in Up In The Air. I did not mean to imply any personal unpleasantness from Olson; I've never met the man. What I was referring to was his position as one of the leading voices in movement conservatism decrying the supposed liberalism of law.

Prof. Kerr, this may seem overly impressionistic, but the examples that stick with me are the ones I gave; previously I was a union lawyer who also did plaintiff's employment-discrimination litigation; today I am a clinician with a docket that includes employment-discrimination cases, poverty law, and civil rights. I read Prof. Epstein and Olson (and others) to say that both of these careers are detrimental to society (as opposed to simply being undesirable), examples of where law has expanded to its own benefit but society's harm. Perhaps that sacrifices too much accuracy in service of snarkiness in the short distance covered by my post. But when the NLRB filed its complaint against Boeing, the tenor of the coverage in the conservative media was not about whether such a complaint was warranted - it was disbelief that the federal government even had the ability to do something like this. The debate over labor has been about first principles since the passage of the Wagner Act, and that particular war of attrition is nearly done.

Posted by: Raja Raghunath | Aug 6, 2012 5:24:56 PM

Certain courses are, of course, unnecessary and allow profs to almost sleep walk through a class with 10 students as they embark on a journey through sexual harassment law (to use an example in the post). I also practiced in employment law and find it very valuable. After all, if we work we run across the plethora of laws in this realm. But sexual harassment can be covered in an overal employment law/discrimination course as opposed to a separate course. Just like arbitration law - which I taught this summer - could simply be explored in an ADR survey course, allowing students with the desire to learn more to pick it up after law school via a CLE or on-the-job training. Limiting classes can help control staffing and thus help with the cost of law school.

Posted by: Kendall Isaac | Aug 6, 2012 6:25:09 PM

Thanks very much for the explanation, Raja. It seems to me that this is true on both sides, though. For example, on the liberal side, there are those who think it is socially harmful to argue in favor of broad Second Amendment protections, as the NRA does; or to argue against affirmative action, as the Center for Individual Rights does; or to argue against the constitutionality of the Affordable Care Act, as the NFIB did; or to argue against a constitutional right to same sex marriage, as Prop 8 supporters are doing. The general lesson seems to be that if you work on one side of an area with a significant ideological valence, there will be some people on the other side of you that think your work is harmful. Anyway, thanks for responding; sorry if I took you off on a tangent.

Posted by: Orin Kerr | Aug 6, 2012 7:02:28 PM

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