Battle for the law schools

National Review, Sept 26, 1986 by Charles Bork

BATTLE FOR THE LAW SCHOOLS

ALTHOUGH THE catalogue said the course was Torts, the students noticed something odd. Two weeks had gone by and the instructor had yet to say one word about torts. Social justice, redistribution of wealth, gay rights--he had a lot to say about these. But nothing about torts. The professor was a follower of a trendy neo-Marxist school of legal scholarship that goes by the name of Critical Legal Studies, but which could better be described as "Abbie Hoffman Goes to Law School."

Most of the students, held in their seats by the power of the almighty GPA, sat meekly through the torrent of social-science drivel. At last, one student could stand it no longer. Destiny was at work; the time had come to take a stand against the leisure of the theory class. He stood up, raised his book over his head, and announced, "Professor, this book is called Torts. When does class begin?"

By this one act of intellectual defiance, this young man became a folk hero at UCLA. He is part of a growing group of law students fighting what they perceive as the radical drift of the nation's law schools.

The last few decades have been rough times for conservatives in the law schools. Oddly enough, the political success of the conservative movement in the real world has made the problem worse. As one Reagan appointee said before the ABA in 1982, "By my count, there were in recent years perhaps have interpretivists [i.e., legal scholars committed to the belief that the Constitution has a definite and ascertainable meaning] on the faculties of the best-known law schools. And now the President has put four of them on the Courts of Appeals. That is why faculty members who don't like much else about Reagan regard him as a great reformer of legal education."

Into the breach stepped a handful of conservative and libertarian law students with an idea for a revolution of their own. In 1982, they formed the Federalist Society, an organization founded on the principles "that the state exists to preserve freedom, that the separation of government powers is central to out Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be."

Since then the Federalist Society has spread to 75 law schools. The national organization, directed by Eugene Meyer, sponsors a national symposium every year and runs a speakers' bureau. The speakers' bureau brings the prominent legal scholars Reagan skimmed from the law schools back to campuses around the country. This year's symposium on the First Amendment, held in March at Stanford University, featured U.S. Circuit Court Judges Antonin Scalia, Robert Bork, Frank Easterbrook, and John Noonan. Local chapters sponsor speeches and debates and participate in regional symposia on legal issues.

The Federalists have also started up a lawyers' division for graduate members. The first chapter, in Washington, D.C., sponsors speakers' luncheons that draw up to 150 lawyers, judges, law clerks, and congressional staffers. New lawyers' chapters have been started in New York, Los Angeles, Chicago, and Houston. In only four years, the Federalist Society has placed itself squarely in the mainstream of the legal community. A 1985 Washington Post article on the "conservative elite" identified the Federalist Society as perhaps the greatest outside influence on judicial appointments.

Mary McCafferty first heard of the Federalist Society when one of her law professors, Steven Conrad (a mainstream liberal), assigned a transcript of the Federalist Society's symposium on federalism to his American Legal History class at Indiana University. Miss McCafferty, impressed with what she read, now heads Indiana's chapter of the Federalist Society. She is currently organizing a regional Federalist symposium on Law and Philosophy, scheduled for September 13. Supreme Court Justice William Rehnquist will be among the guests.

By providing a forum for such subversive, counter-revolutionary ideas as adhering to the Constitution as written, the Federalists may well have changed the intellectual momentum in America's law schools. Prior to the advent of the Federalist Society, Critical Legal Studies was the hottest item on the legal scene. As an intellectual movement, CLS represents the logical extension of the principles that had dominated legal scholarship for three decades. Liberal jurisprudence rejected the possibility of a "strict construction" of law, arguing that the meaning of the Constitution (for example) undergoes substantial evolution over time. Judges, in interpreting law, were supposed to reach down into what they understood to be the most "deeply rooted American traditions," while keeping a sharp eye on historical progress, in order to make their decisions.

Critical Legal Studies pushed this liberal position to its radical conclusion. Orthodox liberal jurists struggled mightily to rationalize their decisions in constitutional terms, even if they could manage nothing more convincing than the claim that they were acting in accord with the Constitution's historical spirit. CLS partisans ripped away that thin veneer of constitutionalism. They believe that laws, like all texts, lack objective meaning; that legal interpretation, of necessity and in spite of the good faith of the jurist, is merely the selection among political preferences. Indeed, as a movement, CLSers had a lot going for them. They were radical, they were hip, they were revolutionary--law professors who openly rejected the rule of law.