When the Legal Elect Show Their Bias

The Washington Times (Washington, DC), April 18, 2011 | Go to article overview

When the Legal Elect Show Their Bias


Byline: Ray Hartwell, SPECIAL TO THE WASHINGTON TIMES

As a 2007 Carnegie Foundation report titled Educating Lawyers explained, law schools are hybrid in- stitutions emerging both from the historic community of practitioners and from the modern research university, and over time their academic genes have become dominant. This led to a disconnect between the legal academy and the world of practical law, and it had consequences.

Were this just a case of ivory tower intellectuals diverted by esoteric topics of little external consequence, we might logically pay it little mind. But, as Walter Olson explains in Schools for Misrule, "Bad ideas in the law schools .. mature . into bad real-life proposals "Bad ideas in a French department are unlikely to affect the way"people on the outsid "speak French."Bad law "on the other hand,"can take away your liberty, your property, or your family." As Mr. Olson's informative book makes clear, this is a matter of more than academic concern.

Schools for Misrule is wide-ranging. We learn how, through its accreditation process, the American Bar Association pushed a model that led to law faculties whose loyalty was not to the world of everyday practice. Legal scholarship, clinical legal education and funding from organizations, essentially all on the political left, combined to confer power on legal intellectuals and their allies. So there evolved a legal academic community that, in contrast to the ranks of high-end practicing lawyers, is virtually devoid of ideological diversity.

As the ascendancy of academic law led to a boom in research, conferences, and the output of law reviews, the notion that a professor's main task was to lay out accurately what the current state of the law is for students soon to encounter it came to be seen as inadequate. Rather, as one article put it, law schools needed a curriculum oriented toward achievement of democratic values and social objectives. This was to supplant courses with too much deference to 'separation of powers,' 'jurisdiction,' [and] 'interstate commerce.'" Courses on contracts or property were derided as much-favored instruments of the laissez-faire society.

Views of this sort fairly predictably led to teaching and writing that aimed to undermine rules and doctrines that had limited litigation. To cite one of numerous examples, statutes of limitation were too rigid and mechanical when they would prevent redress for decades-old injustices. Mr. Olson illustrates in detail how legal academia was smitten with the idea of expanding rights to sue, with less regard .. for the shrinking right to go about one's affairs without being sued

The advent of law school clinics brought both foundation funding and pedagogical cover for social justice projects. …

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