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.