For Better Government, Don’t Kill All the Lawyers: Noah Feldman
Most everyone hates lawyers. So it probably isn’t a surprise that many people hate law professors, too. A recent front-page article in the New York Times, much discussed in legal circles, was the latest salvo in what is now a long line of attacks depicting the legal academy as impractical and unworldly.
I think the dislike, though, is a result of law professors being too much in the world. You see, law professors -- and I should disclose here that I am one -- very nearly run the world, or at least certain parts of the U.S. government. When you include Justice Anthony Kennedy, who taught nights, they make up the majority of the Supreme Court.
They also dominate a wide range of policy discussions that are by no means restricted to technical questions of law. As an elite within an elite, law professors deserve a close look, and a bit of an explanation about how they think.
Start with the most obvious facts. The president of the United States is a law professor. He was also a state politician and a community organizer, but compared with these public- service-oriented tasks, teaching constitutional law was his actual job for 12 years.
Following Hot Dogs
Ever since Felix Frankfurter sent his “happy hot dogs” to write New Deal legislation and staff FDR’s new agencies, law professors have been trying to affect the way government works. But you don’t need history to make the point. One week in the New York Times will suffice. The same week that it ran the article explaining that law professors are irrelevant, it ran a long article about smog policy that identified Cass Sunstein, Obama’s Chicago colleague (and later a Harvard law professor), as the key player in evaluating the costs and benefits of the rejected regulations.
The paper published op-ed articles by Lawrence Lessig (another Obama contemporary in Chicago and now a Harvard professor) on fixing corruption in electoral politics and by Einer Elhauge (Harvard) on health care. It also ran a lengthy profile of Elizabeth Warren, who invented the Consumer Financial Protection Bureau and is running for Senate from Massachusetts while still working as a Harvard law professor. One week, one law school. It’s enough to make you wonder, Shouldn’t there be equal time for somebody else?
The fact that these people are all law professors matters because law professors, whatever their internal diversity, have some pretty distinctive habits of mind. First, they think in terms of how institutions are supposed to work in theory and then compare the theory to the reality. The comparison is usually frustrating. Law professors who look at policy are therefore natural reformers. They want to hold people to their aspirations, not accept the messy compromises that life throws at us.
Lessig, for example, sees the way money shapes elections and defines it as a corruption of the Founding Fathers’ vision. Which it is. Except that the founders were hopelessly naive about politics -- and the system we have, from political parties on down, bears little relation to what they dreamed of in Philadelphia.
Because they tend to like logical principles, law professors are also big believers in the power of reason to prevail. If they could just get the public to see things clearly, they tell themselves, results would surely improve. Sunstein’s faith in enlightened cost-benefit analysis depends on the notion that careful thought will improve policy results. He’s right, of course -- and that’s why Glenn Beck labeled the moderate, pro-business Sunstein the “most dangerous man in America.”
Magpies of Logic
Reason is indeed dangerous -- if you’re Beck. But good arguments don’t always cut it in politics, as the law-professor- in-chief has had to learn again and again over the past three years.
Last, law professors are hopeless magpies, borrowing or stealing whatever ideas seem to be most exciting and shoe- horning them into new situations. This makes them astonishingly good at generating policy proposals. In recent decades, law schools have become hotbeds of engaged academic work as professors -- many with doctoral-level training in other fields -- apply the lessons of contemporary scholarship to the world of policy. An old issue can be reframed with fresh theoretical tools -- if you can figure out which ones work well.
Sadly, law professors can’t always predict how ideas will work in a new context. Come to think of it, no one can. This is risky, especially if you are a Burkean conservative who thinks change should only happen slowly and cautiously.
From the Securities and Exchange Commission, Frankfurter’s brainchild, to the new Consumer Financial Protection Bureau, most of the law professors’ political efforts have been reformist, reason-oriented and drawn from other fields of thought like economics, political science and philosophy. The reason most law professors are progressive Democrats has everything to do with these tendencies.
In some academic fields, being present-oriented is taboo and appearing in the public eye is an embarrassment. Law professors consider having an impact on policy to be a plus. One test of the value of a legal scholar’s ideas is whether anyone in the real world bothers to listen to them. And those who do basic research instead of policy never forget that they are studying law, which is a real-world phenomenon that has everything to do with the distribution of power.
So don’t expect law professors to begin restricting themselves to doing obscure and technical legal doctrine. They are presidents and pundits and activists and educators, and they believe in reason and reform. They are the very model of an educated, self-replenishing meritocratic elite. No wonder they make some people nervous.
(Noah Feldman, a law professor at Harvard University and the author of “Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices,” is a Bloomberg View columnist. The opinions expressed are his own.)
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