Northwestern law prof John McGinnis reviews Walter Olson's new book, Schools for Misrule: Legal Academia and an Overlawyered America
American law schools wield more social influence than any other part of the American university.
In "Schools for Misrule," Walter Olson offers a fine dissection of these strangely powerful institutions. One of his themes is that law professors serve the interests of the legal profession above all else; they seek to enlarge the scope of the law, creating more work for lawyers even as the changes themselves impose more costs on society. By keeping legal rules in a state of endless churning, lawyers undermine a stable rule of law and make legal outcomes less predictable; the result is more litigation and, not incidentally, more billable hours for lawyers, who must now be consulted about the most routine matters of business practice and social life. ...
Mr. Olson shows that the [legal educational] reforms that had the most baleful effects were those that coincided with the expansionist interests of lawyers. Legal theorists dismissed, for instance, concerns that a wider use of "equitable relief"—a doctrine that judges properly employed to enforce school desegregation—would dissolve the difference between politics and judging. But the concerns we were well placed: Courts ended up playing an important role in managing schools, prisons and welfare agencies. Law professors also helped to develop the class action into an extortionate threat: Companies now pay out million-dollar settlements rather than bet their very existence on a single trial that might well impose massive liability.
Do go read the whole review. But cast a jaundiced eye at McGinnis' concluding argument that:
Today a large part of legal scholarship taps into the ever increasing capacity of computers for precise measurement and quantification. Indeed, the fastest-growing annual conference of law professors is the one that takes up legal empiricism, a field in which scholars measure the effects of laws in the real world (e.g., how certain laws may lead doctors to practice defensive medicine). The other vibrant field is law and economics, where scholars often compare the advantages of the market to other forms of social ordering....
The British Enlightenment ideas that shaped America's legal structure rested on the proposition that markets are central to prosperity and that government actions can be judged by real-world effects. What is novel about law schools today is that, compared with their checkered past, so many more scholars are vigorously returning to the methods that made America.
Maybe that's true at Northwestern. But I very much doubt it's true at most law schools. I'm on record as being professionally skeptical of empirical legal scholarship (ELS), but that's a question for another day. Insofar as the politics of the issue are concerned, I see very little evidence that ELS scholars are committed to the idea that "markets are central to prosperity." To the contrary, most of the ELS scholarship that crosses my desk seems to be determined to find market failures. Ditto the vast bulk of behavioral law and economics work. I thus see no basis for the sort of optimism McGinnis expresses. To the contrary, as I have argued before, network effects dominate the hiring process in ways that continue to reinforce the left-liberal bias amongst law faculties.
All in all, this makes Schools for Misrule an even more important read than McGinnis' favorable review suggests.
