Walter Olson is one of the nation’s leading critics of the litigation explosion. Through his blog, Overlawyered, as well as his books and his work as a think-tank fellow, he has made the case that lawsuits have become a first resort for resolving many types of conflicts, to the detriment of the economy, the government, and liberty. In his latest work, Schools for Misrule, he takes a look at how law schools have contributed to this trend.
If the book has a flaw, it’s that it lacks focus; it covers everything from politics in the classroom, to torts, to slavery reparations, to international human-rights law. But if Schools for Misrule is seen as a loose collection of essays about what’s wrong with the modern legal world, with an emphasis on academia, it works well. An important theme here is that in law, careerism is a powerful force. As a result, the worst left-wing impulses of the legal academy tend to stumble when they come into conflict with lawyers’ self-interest, and to succeed when they advance it.
Take, for example, the legal academy’s attempt to politicize the classroom. It has been successful in many ways — see, for example, the field of “critical race theory” — but Olson describes a significant and effective pushback. Many students have used teacher evaluations to complain about professors who teach their political views instead of the basics of the law, and, in the 1990s, several critics sounded the alarm that, as one put it, “law schools and law firms are moving in opposite directions.” Olson reports that “matters have improved” in the years since: “Careerism,” he adds, “just might have saved the day.”
Students have also resisted some elements of on-campus free legal clinics, which were set up in the interest of promoting “social justice” via “public-interest law” — that is, suing the government and private businesses to force them to adhere to the liberal agenda — while giving students the opportunity to do real legal work. This resistance is not a result of conservative principles, but rather of the simple preference of many students to work in more practical fields, such as business counseling. (Another factor is that those who did pursue liberal causes often came away cynical. One student worked with a sympathetic woman, trapped in a marriage with a man who had abused their daughter, with the result that the child was taken away; she wanted a divorce and her little girl back. Except, it turned out after several months of pro bono legal work, it was the woman herself who had abused the child.)
One other reason clinics haven’t fulfilled their creators’ dreams is that “public interest” litigation has become quite profitable — thanks to plaintiffs’ new ability to recover legal fees — and therefore, practicing lawyers are taking all the cases. And that’s where we see the true genius of legal academia, and the legal profession in general: It manages to argue, on moral grounds, that it deserves more work, more money, and more power. This subject — how lawyers are unstoppable when their self-interest jibes with their left-wing beliefs — sits squarely in the middle of Olson’s wheelhouse, and he handles it expertly.
Time and time again, the legal profession has leveraged its immense political power — lawyers constitute about 60 percent of the Senate and 40 percent of the House, not to mention nearly 100 percent of the judiciary and a sizable chunk of many politics-related fields — to twist the law in its favor. Lawyers start by advancing perfectly reasonable arguments, often in law reviews, and then slowly push policies into ridiculous territory.
#page#Take, for example, the various shifts that led to the explosion in tort cases. Some of the old policies really were problematic, or at least debatable. The rule of contributory negligence held that if your own negligence contributed to a problem, you could not sue someone else who had been negligent as well. This had the advantage of keeping many cases out of the courts — but if the negligence of two people injures one of them, why should the non-injured party get off scot-free?
Or, say a company sells a product in good faith, and follows the law in doing so. Years later, it turns out that the product causes cancer. It hardly seems fair for the company to have to pay for its customers’ medical bills; but it’s no more fair for the customers to have to pay, as they did under the old system. It was self-interested, but hardly unreasonable, for lawyers to suggest that the deep-pocketed company should foot the bill.
Similarly reasonable was the use of judicial injunctions to compel school desegregation in the wake of Brown v. Board. Southern school districts were openly defying the ruling, and had a long history of racial discrimination, so judges asserted control over the districts’ practices.
All of this was soon twisted. Tort lawyers and their academic supporters began advocating policies that advanced no one’s interests but, well, tort lawyers’. As a result, class-action suits have become comically easy to file, and product-liability law has become a minefield for businesses. And don’t forget: Whenever an anti-business crusader files a lawsuit, the targeted business has to hire a lawyer, too. It’s a win-win.
Injunctions have been abused as well. As is its wont following civil-rights victories — which, almost without fail, eventually come to be seen as unimpeachable — the Left took the hammer it had used to implement Brown and treated the rest of the legal landscape like a nail. Judges took it upon themselves to decide countless questions far removed from their areas of expertise, right down to whether the hotel rooms that New York City provided to the homeless should have cooking facilities. Yet another win for the Left, and another reason for everyone to hire more lawyers.
There are exceptions to the trend that left-wing activism prevails only when it works hand-in-hand with lawyers’ self-interest; on a few occasions, self-interest seems to play little if any part. For example, the American Bar Association and the Association of American Law Schools have been given the authority to accredit law schools, and thus the authority to force their political agenda on students and schools. Similarly, many donors to law schools — the Ford Foundation in particular — have used their funds to push schools in a leftward direction. (Both ABA requirements and Ford grants, for example, helped to drive the rise of on-campus legal clinics.)
Olson does not, unfortunately, say much about what we should do about all of this. In the book’s conclusion, his main suggestion is that law schools should refocus themselves on teaching the law rather than changing it. But one idea, suggested by George Leef of the Pope Center for Higher Education Policy, would be to eliminate the government mandate that lawyers go to law school. We already have ways of making sure a lawyer is qualified — the bar exam, coupled with the revocation of law licenses for crimes and malpractice — and it makes absolutely no difference whether someone acquires his legal knowledge at an accredited law school or from books he ordered on the Internet and studied in his parents’ basement.
If law schools are so terrible, why not give students an alternative in the free market?