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Doctoral Dissertations 1896 - February 2014
1-1-2002
Conservative cause advocacy : the multiple sites of conservative legal ideology.
Laura J. Hatcher University of Massachusetts Amherst
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3 1 2 ti b DEfifi 1224 1 CONSERVATIVE CAUSE ADVOCACY: THE MULTIPLE SITES OF CONSERVATIVE LEGAL IDEOLOGY
A Dissertation Presented
by
LAURA J. HATCHER
Submitted to the Graduate School of the University of Massachusetts Amherst in partial fulfillment of the requirements for the degree of
DOCTOR OF PHILOSOPHY
September 2002
Department of Political Science © Copyright by Laura J. Hatcher 2002
All Rights Reserved CONSERVATIVE CAUSE ADVOCACY: THE MULTIPLE SITES OF CONSERVATIVE LEGAL IDEOLOGY
A Dissertation Presented
by
LAURA J. HATCHER
Approved as to style and content by:
Jerome Mileur, Chair .Department of Political Science To the memory of my mother, Beverly Jean Hatcher ACKNOWLEDGMENTS
If I were to list all the people who have been helpful while I worked away at this project, I would fill another dozen or so pages. I owe many thanks for support and critical commentary to many academics in the law and society community, public law. and the law and semiotic worlds who have commented on this work as it has developed.
My works in progress group, made up of graduate students interacting with the Legal
Studies and the public law group in Political Science, deserves a special thanks for reading and commenting on various parts of this work, as well as their supportive friendship. They include Farid Benavides, Laura Donaldson, Alec Ewald and Aaron
Lorenz. Aaron, in particular, deserves an extra special thank you for his continued support and friendship. William Rose and Kathleen Moore, both of whom preceded me in the doctoral program by some years, also provided support and help along the way.
And, outside of UMass, Mark Graber, Christine Harrington, John Gilliom, Michael
McCann, Austin Sarat, Stuart Scheingold, Helena Silverstein and various other scholars have provided great insights that helped along the way.
Intellectually, my greatest debt is to my committee members. In this case, John
Brigham, Sheldon Goldman, and Janet Rifkin have proven to be excellent mentors and wonders to work with. In particular, John Brigham’s mentoring has helped me build a good foundation on which to launch my academic career, and I thank him from the bottom of my heart for all of his help, criticism, and advice over the last five years. I had the advantage of having three committee members who worked well together and were
excellent examples of the various facets of academic life. I do not I can fully describe my
debt to them nor thank them enough.
v Of course, my family deserves special mention here. My father and step-mother,
Herbert and Louise Hatcher, have provided me with a quiet place to relax and refresh myself while working through graduate school. My step-sister and her husband. Carolyn and Phil Tyler, and their daughters, have been amazingly supportive throughout my entire
education and have been a source of strength for me. Finally, this work is dedicated to
the memory of my mother, Beverly Jean Hatcher, who died when I was sixteen but who's certainty about my abilities has sustained me most in times of self-doubt. Had she not
pushed me to believe in myself and set my goals high, I suspect I would not be typing
this acknowledgements page today. So, it is to her I owe the most heartfelt thank you of
all. ABSTRACT
CONSERVATIVE CAUSE ADVOCACY: THE MULTIPLE SITES OF CONSERVATIVE LEGAL IDEOLOGY
SEPTEMBER 2002
LAURA J. HATCHER
PH D., UNIVERSITY OF MASSACHUSETTS AMHERST
Directed by: Professor John Brigham
This project is a study of right-wing legal activism as it manifested itself at the end of the twentieth century on behalf of property rights. Political scientists and sociolegal scholars have done scant research on conservative movements. Yet, the importance of understanding legal activism that is neither progressive nor “liberal” is crucial for understanding today’s political scene as well as adding to our knowledge about the processes of social change and the role lawyers play in them. The activists studied here are important largely because of their positions as elite academics, lawyers and their connections to important governmental officials and business interests. They have been working diligently to change notions of property in the U.S. to conform to
their vision of what is appropriate for a good society. However, rather than studying them as a broad movement with a consistent worldview, this research utilizes historical research, content analysis and observation of meetings to describe the activity of ideology creation they engage in within several different settings and provides an analysis for the wide range of strategies and activities these activists use in the production of property notions in today's United States.
vii TABLE OF CONTENTS
Page ACKNOWLEDGMENTS v
ABSTRACT ~
Chapter
1. INTRODUCTION
2. TRANSLATING IDEOLOGY INTO ACTIVISM 21
3- GREEN METAPHORS: MOBILIZING PASTORALISM AND TAKINGS 58
4. PICKING RIGHT JUDGES 88
5. ACADEMIC SAFE HAVENS 117
6. CONCLUSIONS 146
BIBLIOGRAPHY 167
viii CHAPTER 1
INTRODUCTION
Understanding Conservative Cause Advocacy
This project examines conservative legal activism with a particular focus on those lawyers involved in property rights movements. While other scholars have studied conservatives, most of their work does not consider the structure of this legal activism and the means by which lawyers and legal professionals advancing conservative causes have constituted legal ideology through their work. This project fills this gap, building on insights other scholars have provided concerning conservative litigation and the production of legal ideology by lawyers and legal professionals. Ostensibly, this project concerns the “New Right” - a constellation of activists, interest groups, think tanks and
various other actors arising since the 1970’s. However, while I occasionally use this
term, 1 do so with growing hesitancy. As the research here indicates, the “New Right” is not monolithic, and the term tends to lump all these different perspectives into one lump, which is not analytically helpful when doing research of this nature. And, the “New
Right” certainly has a relationship with the “Old Right,” or the conservative movement
that reached its nadir during the 1950’s. It even has a relationship with an older Right in the United States that was extremely active in the late nineteenth century. Thus, the
“newness” of the “New Right” seems questionable or at least requires further
1 interrogation. This dissertation considers some of the communities within the contemporary conservative movement, and as such may contribute to the discussion ot
the structure of the New Right without, I hope, making the assumptions that are often
associated with this label. Fifteen years ago, Lee Epstein and Karen O’Connor studied conservative litigation strategies. Together, they described and analyzed the use of amicus briefs by conservatives. Professor Epstein’s book, Conservatives in Court? remains the principle text in political science discusses early conservative public interest law groups. Written before the Institute for Justice and other groups were formed, Epstein focused largely upon conservative public interest law as the Pacific Legal Foundation and the Mountain
States Legal Foundation developed it. Given the developments that occurred here over the course of the last fifteen years and the importance of distinctions within the right- oriented movements regarding proper judicial role and interpretative techniques, my work will seek to update and extend the analyses that were offered in the mid-1980’s.
In 1993, Sotirios Barber described the New Right and its importance in his book,
The Constitution ofJudicial Power* Offered in the hope that it would shake some of the liberal friends of the Court to more insightful defenses, Professor Barber unabashedly shakes his finger at the liberals who seem incapable of protecting the Court as the New
Right attacks it from several fronts. Conservative judges and justices, conservative law
scholars, and their perceptive use of the inconsistencies found in liberal jurisprudence are
all a part of his analysis. Like Professor Barber, my work will look at several different
points where conservative activists have been able to make connections with the power
structure of the state and thereby influence the judiciary. However, rather than basing
this research in analyses of constitutional theories I also utilize evidence from movement
literature, a study of the use of the judicial selection process and the attempt to influence
social activists. Important it, as well as explore the connections between law scholars and
2 to all this is a study of language and ideology, which as described shortly, is drawn from theories developed in legal studies.
More recently, scholars such as Christopher Smith. Richard Brisbin and David
Schultz have all studied the importance Justice Scalia played in the conservative revival of the 1980 s. Justice Scalia played a key role in helping to mobilize conservative
5 activists to use a wider variety of strategies in the courts. Christopher Smith points out that Scalia raised the hopes of many conservatives who believed that he could lead the
Court in a way that Rehnquist has not been able to do. Conservatives, however, have been sorely disappointed at Scalia’ s inability to build consensus among the conservatives
6 on the Court. Along with David Schultz, Christopher Smith has co-authored a book that
more fully explores Scalia’ s jurisprudence. ' While these works are excellent sources for
understanding both Scalia’ s jurisprudence and his role in the conservative movement,
their focus on him as a justice often leaves him out of the other settings that he has been a
part of, such as the University of Chicago law faculty, a frequent speaker at conservative
universities, think tanks and conferences, and the influences he and other conservatives
have on one another in discussions where ideology is constructed.
Conservative legal activism did not spontaneously erupt on the political scene in
a the 1970’s and 1980’s. Rather, their activism appears to be part of a conservatism and
here is right-wing activity that stretches far back into our history. One issue investigated
faire and the the connection right-wing activists have to the history of laissez
nineteenth century jurisprudence not only development of it as an ideology underpinning
through the development of during the Lochner era in Supreme Court history, but also
curriculum and the development of professional bar associations, changes in law school
3 the legal profession 8 in its . modem form My argument is that these last developments
were part of the ideological construction of laissez faire just as the legal academy,
grassroots organizing, judicial selection and conservative legal activism shape today's
conservative legal ideology.
Like their nineteenth century counterparts, the right-wing activists I describe rely
on the importance of private property and the clear distinction between the public and
private sphere to ground their arguments. Individual liberty is seen as a means for
ensuring upward economic and social mobility. Equality is defined as the law's
neutrality to social differences. And, like their nineteenth century counterparts, they also
see the courts as a place to go when others are interfering with individual liberties -
others, including the government in the form of administrative agencies. One chapter
presented here connects the ideologies shaping today’s movement with those that shaped
the past.
As rare as research on conservative legal activism is in the public law literature, it
is still rarer in the law and society literature. Some of the scholars discussed above
overlap in these literatures. But, while the law and society research contains a large
9 amount of work on legal activism and the legal profession and legal culture more
10 with the exception of works already cited here, there is very little work on generally ,
conservatives, reactionaries and on the right-wing in general.
developed over the last A case in point is the cause lawyer literature that has
so far is focused on left- several years. Most of the published work that has been done
11 highly problematic, particularly when a researcher wing cause lawyers . This becomes
change, but what becomes interested in understanding not only how to create social
4 happens when certain claims are made and opposed. Attempting to apply insights from this work to right-wing movements and lawyers leads to a terrain that seems surreal. The theoretical guideposts available to assist in the research seem somewhat inappropriate.
Indeed, most of the definitions of what "cause lawyers'' are, or more generallv, defining social movement activism, connect these activities to “system 12 oppositional” behavior .
In these theories, social activism is geared toward shifting the status quo, or is situated in opposition to the dominant power structure of society. In the Scheingold and Sarat Cause
Lawyering volume, a link is made between moral activism and the notion of a cause. In
most of these studies, the lawyering is seen to have the goal of changing society “for the
good.” Carrie “. As Menkel-Meadow writes, . . definitions of cause and public interest
lawyering that use change all seem to assume ‘change’ for the better (i.e., for more
equality, empowerment and other left-like reforms). There has been plenty of legal
.” 13 change in the last ten years, but more public interest lawyers would hardly call it good
By leaving the right out of their definitions, they have also lost some of their
capacity for understanding why change more generally (not simply in a progressive
direction) occurs. As Menkel-Meadow suggests, how we define our terms will depend
on where we are situated and whether we are willing to concede that those we do not
agree with may still be operating with a vision of the public good and a morality based in
a different worldview. One is reminded, here, of the discussion William Connolly offers
Discourse in which he describes terms such as “democracy" as in Terms ofPolitical ,
“essentially” contestable in part because of the normative positions speakers take toward
them. Thus, what “democracy” is will be contested as long as normative positions
essentially towards democracy differ markedly. Is it possible that “cause lawyer” is
5 contestable in the same sense, because the scholars who are using it do so as a way of staking out particular normative positions about the activity? If so, it may not be possible to fit right-wing activists under the same rubric. However, the disadvantage to such an understanding is that it leaves out important aspects of change and ideology in theories of the legal profession, social change and social movements. Moreover, it does not interrogate the way in which social structures are constituted by legal ideology.
Linking Conservative Lawyers to Legal Realism
As conservative legal activism more generally has come under scrutiny in the press and in various other settings, it has become increasingly obvious and not at all surprising that much of this discussion is framed around the idea that law should not be
14 political . The narrative could be paraphrased as something along these lines: “thanks to
the other side (whichever side), law has become politicized.” Groups claiming to be on the left of the political spectrum charge the Federalist Society and conservative legal activism in general with attempting to do away with a democratic jurisprudence. 1 " Yet,
they do not explain what “democratic” means, particularly when it is linked to the word
“jurisprudence,” nor how participation would be provided for in such a depoliticized legal system. Ultimately these arguments contain a logical inconsistency that appears inherent: one would assume that a democratic jurisprudence would include a great deal of
participation on the part of the people, and this is deeply suggestive of a highly politicized legal process.
As discussed in these pages, the conservatives engendering all this heated
discussion would themselves agree that law should not be politicized, and that a more
6 "democratic” jurisprudence is needed in the United States. Again, what this means is not clearly explained, yet the “neutrality” and “impartiality” of law is a hallmark of much of their legal thinking (albeit with different notions of what it means to be both neutral and
impartial). There are legal process-like arguments among conservatives that place the
law making power in the hands of legislatures; there is also a deep concern that
legislatures should be restrained from potentially undemocratic behavior (i.e., they fear
the tyrrany of the majority). Depending upon how one defines “democracy,” the various
arguments even within the right can become very heated. Yet it is clear that many in all
parts of the political spectrum find legal realism at fault for the current state of affairs.
And, they generally want to find a way to ground their claims in something less
relativistic than realist principles.
Here, too, we find something that perhaps not exactly ironic but is quite curious to
scholars who know the history of legal thought in the U.S. For when we stumble across
legal realism, we still seem to find it startling even though it has been with us as a theory
of law for at least a hundred years, and some would argue that it has been with us still
longer. This insight is not new, and has led some to argue that fundamental to legal
it long realism is the belief that the political nature of law is revelatory, even though ago
ceased to be. This was part of an argument made by John Brigham and Christine
those who Harrington in 1989: one of the consequences of legal realism was to empower
law “discovered” law’s politics while simultaneously providing the basis for a critique ot
16 realism, then, can be understood that legitimates lawyers and legal professionals. Legal
discourse of the U.S., and as as a means of maintaining the status quo within the legal
7 such becomes an ideological basis for many of our key institutions and a polical resource for legal actions.
Quite importantly, as I have discovered presenting the research here, any discussion in which you draw attention to the political nature of law is attributed to a normative bias on behalf of the other side — if a progressive is listening, then this work is seen as empowering conservatives; and if a conservative is doing the listening, it is quite obviously a liberal project. I learned as I worked that a descriptive argument — one that does not maintain that law is anything other than what is, with a core principle being that it is political (for good or ill) — will be understood in this climate as a normative argument. I believe the reason for this is that the critical nature of such a description can
be felt intuitively. However, to critically analyze is not the same as opposing, nor is it the
same as supporting. I find the idea that law is political extremely empowering, and teach
my students that it provides them with opportunities that they would not have if law were any other way. This political nature does constrain possibilities, but as in any game, one
must take risks and learn to strategize. Therefore I want to make explicit that this
analysis is not a liberal legal argument where the importance of maintaining the
autonomy of the legal system is juxtaposed against the need for participation. Rather, the
work presented here is intended to be a frank discussion of liberal legality and as such
considers critically claims made by conservatives as well as “liberals.” I have attempted
to take my research subjects on their own terms, perhaps naively trusting in their honesty,
place in a and describe them as I find them. My own politics, my own norms, me
cleverness and different political camp then they; however, I have learned to respect their
8 nuanced understanding of how to be activists and where to place pressure in the contemporary political scene.
Because of a particular interest in the production of New Right legal ideology, I have chosen to work from a perspective known as “constitutive theory of law.” Such research departs from instrumental understandings that attempt to understand the ways in which actors seek legal change. Instead, it posits the relationship to be an extremely dynamic one in which law is understood as the dependent variable with the capacity to effect changes in the independent 18 variables giving it shape . To fully understand the
subtle and intimate relationship law and politics have, it is not enough to recognize and
document changes in legal doctrine, nor is it enough to seek out the impact legal change makes in the behavior of political and social actors. Instead, constitutive research
attempts to describe how legal ideology is created within relations that are themselves
19 products of ideology . It argues that, at its core, law is political, and that the constitution
of law is found in politics. Yet, an analysis that stops at that point misses the ways in
which politics and law frames political interests and actions. More simply put, law and
politics are so bound up together that it is impossible to separate them without changing
their very nature - they are mutually constitutive.
Constitutive research requires the identification of various sites in which law is
constituted through politics, and once identified, requires a detailed empirical description
21 to date has focused on alternative dispute resolution, social of them . Much of the work
2 movements and legal movements. " Other sites include the legal academy and political
^ research heie processes such as judicial selection, and transnational politics. The
profession and draws on work written in the multidisciplinary scholarship on the legal
9 legal mobilization found in law and society in order to interrogate the importance of conservative legal activists. In this project, the sites are grassroots mobilization, the legal academy, the judicial selection process, and the world of conservative public interest law.
At the end the of dissertation, I suggest that there is room for fruitful investigation of conserv ative legal activism in transnational legal processes, and make some suggestions concerning potential projects in this realm.
A project utilizing a constitutive framework and that attempts to understand the
development and transmission of ideas requires methods that can depict the language and
ideas as well as the actions of the research subjects. Here, I have utilized content analysis
of various types of movement literature: newsletters and other materials sent to me by
U.S. mail as well as by electronic mail by the Pacific Legal Foundation, the Institute for
Justice, the Free Congress Foundation, the Federalist Society; various materials provided
on web sites by these and other conservative public interest law groups; monographs,
magazine articles and various law review articles and symposia written by important
individuals in conservative legal activism such as Judge Richard Posner, Richard Epstein,
Guido Calabresi and others. The latter materials include both scholarly materials and
writings that are intended to reach a broader public. Along with this, amicus briefs as
well as case law have provided insights into the workings of conservative public interest
law and changes occurring in American constitutional law.
The material that has been specifically referred to is in the bibliography listed as
“Movement Literature.” That section has been further divided into two categories:
etc." The custom in “Scholarly Works” and “Position Papers, Newsletters, Speeches,
and secondary sources. However, social science bibliographies is to distinguish primary
10 my research uses some works, such as Posner’s and Epstein’s writings, as material to be analyzed and understood within the community of conservatives and within discussions with their interlocutors. Thus, the distinction in the bibliography represents the way in which conservatives form “interpretive communities.” This construct, borne out of
literary studies, was developed in order to understand where interpretive authority came
from with regard to literary texts. The idea is that communities develop around the
interpretive process, and through that process identities are constituted and develop
understandings communal of what a text means (or the possibilities for what it may
24 mean ). The sites of conservative legal activism are interpretive communities in which
their identities as scholars and lawyers, as well as what conservatism and right
libertarianism is, are constituted through various discussions. The material, then, in this
section of the bibliography represent some of the texts and discussions in which this
process plays out.
In addition to this content analysis, I have attended for observation purposes two
of the national meetings of the Federalist Society. My study of the Federalist Society has
also occurred through a review of the symposia proceedings for their national meetings,
which are published in the Harvard Journal ofLaw and Public Policy. Other symposia
proceedings have enabled an analysis of arguments and ideas in the law and economics
Movement. Finally, newspapers articles from newspapers of record (particularly The
New York Times and The Washington Post) have also been collected when information
concerning the Federalist Society, law and economics or property rights activism
twenty involving conservative public interest law groups have occurred over the last
helpful in determining when years. This last set of data is not exhaustive, but has been
11 key events occurred (such as the first meeting of the Federalist Society and the period when the Federalists detennined to hold more than one meeting). Most of this information has been verified with the organizations, and where it has not been I have noted this in a footnote.
The Difficulties of Defining
Conservative activists come to their positions through an understanding of what society should be like and what human nature is. They believe their position to be based on a realistic assessment of humanity as inherently self-interested, and the appropriate relationship government and institutions should have to citizens. This morality is a far cry from what many scholars suggest motivates many left activists. However, it is a politics based on morality nonetheless. If we forget that morals are relative to our worldviews and that worldviews may be incommensurate, we leave out important information for understanding our opponents in the political and legal arena. Thus, by studying the right and allowing the lessons gleaned from our research to affect our understanding of social change more generally, we may also be provided with insights
that will help us understand left-wing social activism more fully.
Rather than understanding lawyers in terms of their personal worldviews and think of ideology in terms of personal beliefs, the work here draws on the notion that
: " ideology is a set of practices giving shape and contour to social life. Whether left or right, lawyers as active participants in a professional terrain learn to behave in ways that are expected of them as participants in an adversarial process. The practices that are part
of realist legal culture form an ideology that is, itself, important to take into account in
12 studying lawyers actively litigating for some type of social change. But it is also important to be mindful of how these practices inform the attitudes and understandings of those who oppose social change or oppose a direction of change advocated by others.
Conservative public interest lawyers, falling into the latter two categories, behave according to the practices of their profession, changing strategies as they face new opportunities and challenges.
Liberal legalism has been a part of these practices at least since the “glory days” of the Warren Court. The linkage between liberal legalism and liberal politics grew out of the seeming success of the NAACP’s litigation campaign in Brown v. Board of
Education, which declared school segregation unconstitutional. The reliance on the courts, particularly the Supreme Court, by activists lawyers since then has been
scrutinized 28 and discussed at great length . The right’s use and recent reliance upon the courts, however, has rarely been a part of those discussions.
Whether conservatives “count” as “cause lawyers” or “public interest lawyers” or
whether conservatives movements are “social movements” are important questions
needing to be addressed by sociolegal scholars. This provides an analysis that enables us
to understand the relationship between conservative and liberal cause lawyering as well
as how the legal profession participates in the processes of social change. Similarly, an
alternative approach would be to study the activist lawyers and judges in a way that
balances their role as legal actors with their role as political actors. Terence Halliday and
29 theorized as others have done such work within sociology . In this work, lawyers are
politically active in moments when something is challenging the institutions to which
they are linked professionally. While this literature is still developing, it seems fruitful to
13 consider the political sociology of legal activism as a way to improve our knowledge about processes of social change and the importance of activist lawyers in shaping them.
Thus, my work identifies who the actors are, what linkages they have to each other and various institutions, and how their vision has come to be so powerful and persuasive over the last few decades.
Important for this dissertation is a critique of liberal legalism that has been very important in scholarship social on change and interest group use of the courts for quite some time. Discussions have gone back and forth between whether use of the courts to create social change is a good or bad thing. There appears to be a tension in many of these discussions that has not yet surfaced, in part because the data used in these arguments comes from left-wing movements. Studying right-wing lawyering can provide another perspective in this discussion and presents us with evidence that suggests a
question that seems in the background of so many of these arguments: to what extent is
liberal legalism itself conservative? In this sense, “conservative” means that it maintains
the status quo and reinforces the position of institutional actors. If liberal legalism is an
ideology, as I have argued, developing in an activist environment informed by legal
realism, the degree to which it operates to reinforce the institutions shaping society is critical to understanding how, when and why certain types of social activism work while others do not. The second question that begs to be asked once we raise this first one is
whether it makes sense for radical activists to use the courts to create social change if,
indeed, the process is itself inherently conservative. However, answering this second
question is beyond the present study. Rather the findings here are merely suggestive of
14 where future research may find some answers - or what questions ought to be raised for deeper inquiry.
At the time of this writing, the larger question continues to lurk in my mind; however as I began to watch the property rights movements and learn more about who makes up those movements and, more generally, how movements mobilize, my interest shifted from the grassroots activists to a focus on the lawyers involved in the movement.
This shift does not represent an understanding of grassroots activism as unimportant or inconsequential to property rights disputes. Indeed, one chapter of this work is devoted to understanding the way in which pastoralism as an ideology in American culture has been mobilized by property rights activists in order to legitimize their claims. However, my curiosity concerning the mobilization process itself and the relationship law and
society have to one another brought into focus legal claims made by property activists.
Looking closely at those claims and the shape they took in particular cases, the involvement of high profile lawyers and legal scholars in the mobilization process was clearly an important element of the story. And, by following them into their conservative public interest law firms, and then through to their academic and governmental
connections, I realized that like other mobilizations, lawyers were on the ground here,
enabling the activism and legitimizing it through their expertise and knowledge of property rights.
However, unlike some of the more progressive and social justice oriented movements documented in the literature on lawyers and legal activism, the property rights advocates explicitly connected to key institutions of power in the United States: particularly, capitalism, the Federal government, and the legal academy. While there are
15 other movements with strong advocates in these locations, the way in which conservative property rights activists have been connected to organizations such as the Federalist
Society and intellectual movements such as the law and economics movement is worthy of much closer scrutiny.
Conservatives have been working on behalf of conservative causes since the time of the Founding. Indeed, in some more radical accounts of the Founding Fathers, they are portrayed as activists in a social movement and the Revolution is seen as the first property rights movement in the U.S. It is probably more accurate to say that they were good liberals, and that the importance of property was a motivating factor in establishing our constitutional principles; however, it strikes me as a bit anachronistic to call a liberal
30 revolt against monarchic rule a social movement . The beginning of this country and the
legal faith that developed in the years after the Revolution certainly has given and continues to give rise to a conservatism with liberal (Whiggian) principles that have
private property rights at the heart of their beliefs concerning individualism and liberty.
It is not surprising, then, that when economic changes altering property relations occur
within the state regulatory regime we see a strong response. And, indeed, in today’s legal
landscape, we have several different conservative groups with somewhat different views
of property working on behalf of private property rights.
While all conservative legal activism is not bound up in the advocacy of property
rights, a core group of conservatives, involved with the Federalist Society and the
founders of the conservative public interest law firms now spread throughout the country,
began their legal activism in the realm of private property rights and “green backlash.”
groups - Thus, to begin to understand the contemporary landscape, I start with the core
16 those first on the scene - to see how their activism has developed over the last thirty
years. What 1 find, here, is that it has spread out away from those early public interest groups, encompasses several sites where pressure is placed on state institutions in the hopes of creating particular changes, and bears a family resemblance to legal activism on behalf of progressive causes. The family resemblance, I argue, is tied to the state structures in which this activism is taking place, and the ideology of legal realism.
Finally, I suggest that the work to take U.S. style property rights abroad is a means by which these legal activists are working to graft American institutions onto the political structures in transitioning democracies and requires further investigation to fully comprehend the breadth of this activism.
7
1 Some scholars have done an excellent job studying the “New” of the New Right. See for example, Jerome Himmelstein’s To the Right: The Transformation ofAmerican Conservatism, (Berkeley: UC Press, 1990).
2 Karen O’Connor and Lee Epstein, “The Rise of Conservative Interest Group Litigation,” The Journal ofPolitics 45 (1983): 479-489.
' Lee Epstein, Conservatives in Court (Knoxville: University of Tennessee Press, 1985).
4 Baltimore: Johns Hopkins University Press, 1993.
5 Richard Brisbin Justice Antonin Scalia and the Conservative Revival (Baltimore: Johns Hopkins University Press, 1997)
6 Christopher E. Smith, Justice Antonin Scalia and the Conservative Moment (Westport: Praeger Press, 1993).
7 David A. Schultz and Christopher E. Smith, The Jurisprudential Vision ofJustice Antonin Scalia (Lanaham: Rowman and Littlefield Publishers, 1996).
8 Faire In particular, see Benjamin Twiss, Lawyers and the Constitution; How Laissez and Arnold Came to the Supreme Court (Princeton: Princeton University Press 1942); -l 895 Paul, Conservative Crisis and the Rule ofLaw: Attitudes ofBar and Bench, 1 88 historical period and (Ithaca: Cornell University Press). Other work done in this same
17 1
exploring some of the same themes, but done by sociologists and historians, includes Charles Warren, A History the American of Bar (New York: Howard Fertig, 1966); Michael Powell, From Patrician to Professional Elite: The Transformation of the New York City Bar Association (New York: Russell Sage Foundation, 1988); Terence C. Halliday and Lucien Karpik, Lawyers and the Rise of Western Political Liberalism. Europe and North Americafrom the Eighteenth to Twentieth Centuries (Oxford: Clarendon Press, 1997).
Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (Chicago: The University of Chicago Press, 1991); Michael W. McCann, Rights^at Work: Pay Equity v Reform and the Politics ofLegal Mobilization (Chicago: The University of Chicago Press, 1994); Helena Silverstein, Unleashing Rights: Law, Meaning, and the Animal Rights Movement (Ann Arbor: University of Michigan Press, 1996); John Brigham, The Constitution of Interests: Beyond the Politics ofRights (New York: New York University Press, 1996).
10 Works on the legal profession and legal culture include Bruce Ackerman. Reconstructing American Law (Cambridge: Harvard University Press, 1984); John Brigham, Cult of the Court (Philadelphia: Temple University Press, 1987); Richard Abel, American Lawyers (Oxford: Oxford University Press, 1989); Pierre Bourdieau, “The Force of Law: Toward a Sociology of the Juridical Field,” The Hastings Law Journal 38 (1987): 805-853; John Brigham, “Professions of Realism,” in The Constitution of Interests, pp. 57-75; John Brigham and Christine B. Harrington, “Realism and Its Consequences: An Inquiry into Contemporary Sociological research,” 17 International Journal of the Sociology ofLaw (1989): 41-62; Christine Harrington and Maureen Cain, Lawyers in a Postmodern World: Translation and Transgression (New York: New York University Press, 1994).
1 For an example of this work, see the essays in Stuart Scheingold and Austin Sarat (eds.) Cause Lawyering; Political Commitments and Professional Responsibilities (Oxford: Oxford University Press, 1998).
12 I borrow this term from Sara Diamond, Roads to Dominion; Right-Wing Movements and Political Power in the United States (New York: Guilford Press, 1995).
13 Lawyering 58. Scheingold and Sarat, Cause , p.
14 Institute for Democracy Studies, The Federalist Society and the Challenge to a Democratic Jurisprudence (New York: Institute for Democracy Studies, 2001). The IDS
is a left-wing think tank studying what they refer to as anti-democracy movements. During the AB A/Federalist Society controversy over the ABA's role injudicial selection, they were among the most vocal, appearing on National Public Radio as well as in other venues.
15 Ibid.
16 41-62. Brigham and Harrington, "Realism and Its Consequences," pp.
18 81
Alan Hunt, "The Ideology of Law: Advances and Problems in Recent Application sof the Concept of Ideology to the Analysis of Law," Law and Society Review 1 9, no 11 (1985): 11; Alan Hunt, Explorations in Law and Society: Toward a Constitutive Theory ofLaw (New York and London: Routledge Press, 1995); Brigham, The Constitution of Interests and ; Cam Harrington, Lawyers in a Postmodern World ; McCann Rights8 at Work', Silverstein, Unleashing Rights. ’
1 Brigham, The Constitution ofInterests, especially p. xiii and pp. 1-27; McCann, Rights at Work, particularly pp. 6-9.
19 Christine B. Harrington and Barbara Yngvesson, "Interpretive Sociological Research." 15 Law and Social Inquiry 135 (1990): 135-148.
20 John Brigham and Christine B. Harrington, "Realism and Its Consequences ” dd 41- 44.
2 Hunt. “The Ideology of Law”; Hunt, Explorations in Law and Society, pp. 117-138; Brigham, The Constitution ofInterests, especially pp. 1-27. “ For examples of constitutive work on alternative dispute resolution, see Christine B. Harrington, Shadow Justice: The Ideology and Institutionalization ofAlternatives to Courts (Westport: Greenwood Press, 1985), Christine B. Harrington and Sally Merry, "Ideological Production: The Making of Community Mediation," Law and Society Review 22, (1988): 709-737; on social movements, see McCann, Rights at Work and Silverstein, Unleashing Rights. Also, for a fascinating study on the way in which
communities are constructed through law, see Carol J. Greenhouse, Barbara Yngvesson, and David Engel, Law and Community in Three American Towns (Ithaca: Cornell University Press, 1994) and Barbara Yngvesson Virtuous Citizens, Disruptive Subjects: Order and Complaint in a New England Court, (New York: Routledge Press, 1993).
" On the role of lawyers and the legal profession, see Robert W. Gordon, "Legal Thought and Legal Practice in the Age of American Enterprise, 1870-1920," in G. Gelson, ed., Professional Ideologies in America (Chapel Hill: University of North Carolina Press, 1983) and on the importance of lawyers in transnational and international politics, see Yves Dezalay and David Sugarman, eds., Professional Competition and Professional Power: Lawyers, Accountants and the Social Construction ofMarkets (London and New York: Routledge Press, 1995) and Yves Dezalay and Bryant Garth, Dealing in Virtue: International Commercial Arbitration and the Construction ofa Transnational Legal Order, (Chicago and London: The University of Chicago Press, 1996).
24 See Stanley Fish’s discussion in Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies (Durham and London: Duke University Press, 1992), pp. 141-160.
25 John Brigham, The Constitution ofInterests, especially pp. 11-15. Brigham s work draws on the earlier contributions of Karl Klare, Phillip Selznick, Alan Hunt, and Isaac of social life. Balbus to the sociology of law in building a theory of law as constitutive
19 His argument is very similar to an argument made by Michael McCann and Helena Silverstein in Cause Lawyering entitled "Rethinking Law’s Allurements," pp. 261-292. For other work studying the constitutive dimension of law in various arenas, see Christine B. Harrington, Shadow Justice ; Christine B. Harrington and Maureen Cain Lawyers in an Postmodern World Michael ; McCann, Rights at Work ; Sally Engle Merry. Getting Justice and Getting Even: Legal Consciousness Among Working-Class Americans (Chicago: The University of Chicago Press, 1990); Susan M. Olson and Christina Batjer. ompeting Narratives in a Judicial Retention Election: Feminism versus Judicial Independence,” Law and Society Review 33, no. 1 (1999): 123- 160; and Silverstein Unleashing Rights. ’
I use the term liberal legalism” in the same sense discussed by Laura Kalman in The Strange Career Liberal of Legalism, (New Haven: Yale University Press, 1996). She defines it as a faith in the courts to bring about social change.
27 3 4 7 U.S. 483 (1954).
-)g For a taste of the debates surrounding this issue see John Brigham, The Cult ofthe Court Gerald Rosenberg, ; The Hollow Hope. For a discussion of The Hollow Hope and Professor Rosenberg’s reply to critics of his work (Michael McCann and Malcolm Feeley), see Law and Social Inquiry no. , 17, 4 (1997): 715-778. A very recent contribution in this debate is Mark Tushnet’s Taking the Constitution Away From the Courts (Princeton: Princeton , University Press, 1999). Mark Graber recently characterized Tushnet’s latest work as a form of “law school populism” that, while potentially a classic in American legal thought, lacks depth in terms of populist thought. See his comments in “Law School Populism”, presented at the New England Political
Science Meeting, May 5-6, 2000, Hartford, Connecticut. Manuscript on file with author.
Halliday and Karpik, Western Political Liberalism.
30 J. Franklin Jameson, The American Revolution Considered as a Social Movement (Cambridge: Harvard University Press, 1926).
20 CHAPTER 2
THE LANDSCAPE OF CONSERVATIVE CAUSE ADVOCACY
Introduction
The “New Right” has gained ground in the political landscape of the United
States, particularly within the arena of the legal academy and, increasingly, within the judiciary. Groups such as the Federalist Society, and the Institute for Justice are key players in some ot the most important policy issues confronting the U.S., and while analysis of these groups and their 1 activity has been a project of several scholars, understanding the role conservative lawyers play within the conservative movement and how to study them in relation to theories of social change more generally remains new terrain ready for fruitful investigation. This chapter examines conservative lawyers and
their relationship 2 to a set of strategies known as “public interest lawyering.” However, this investigation does not focus only on the lawyers currently active in the courts but instead compares it with the first emergence of such activism in the U.S. The purpose of this historical comparison is to gain an understanding regarding how changes in state and
society shape the activities of lawyers working on behalf of property rights. It interrogates the characteristics that make this activism more salient in certain social and political contexts, and attempts to suggest ways in which the relationship among ideas, practices and ideologies can be developed further to enrich our analysis of today’s legal activists and the development of conservative movements. 3
Other scholars have demonstrated that the legal activism we saw in the late nineteenth century occurred as the state addressed social issues arising during
4 industrialization. The relationship between this transformation and changes in
21 capitalism are an 5 important part of the story . Other scholars have demonstrated that as the market economy took shape, lawyers working on behalf of corporate interests attempted to persuade the courts to a laissez faire jurisprudence. The acceptance of many laissez faire ideas served as the backdrop for scholarly understandings of Proeressivism. with the Progressives coming onto the scene in the hopes of reforming a system where capitalism 6 was running . amuck Studying these conflicts are critical for grasping the differences among right-wing actors, but it is also important for developing theories that describe the ways in which ideas and practices take shape as ideology and should allow for future comparisons with legal practices and ideologies among more progressive
7 lawyers . Further, because laissez faire lawyers’ tactics and strategies are very similar but not identical to today’s right libertarian lawyers’, studying them provides suggestions for ways we can understand today’s legal activism and the ways in which changes in
society, political institutions and the legal profession give it shape.
Once we move to the last half of the twentieth century we find that in both
contexts, the state is attempting to adapt to shifts in capitalism and the economy. Against
this backdrop, issues arise regarding the rule of law and the appropriate role of the legal
profession. This is not to argue that the state utilizes the same strategies in both periods,
that capitalism changes in the same way, or that the entire legal profession of today is
taking on its nineteenth century form. Rather, the point here is that conservatives and
right libertarians are active in both periods in part as a reaction to what they see as
expanding regulations that would encroach on individual liberty; and, in both periods we
find right libertarians activated, because other conservatives are not defending individual
liberties in the way they believe are necessary for a free society.
22 The ideology underpinning beliefs concerning the roles ofjudges and lawyers as
well as the “public interest” is largely the same today as it was in the nineteenth century,
despite other shifts in the social context. Thus, their tactics, strategies and arguments are
strikingly similar in both periods. But, with the rise of the public interest law practice in the twentieth century, today’s lawyers make one strategic move that sets them apart from their nineteenth century predecessors: they do not openly work on behalf of large corporations as the laissez faire lawyers of the last century did, but rather position themselves as seeking justice for the “little guy” - quite often, small businesses and private property owners fighting state regulations. The advent of the public interest lawyer, then, provides right libertarians with a legal form conservatives and right libertarians utilize to advance their ideology while appearing to work on behalf of disadvantaged individuals. This results in an odd mixture of ideals and language from both centuries, as will be discussed below. Finally, I argue that this recent development within the public interest law context is of critical importance to developing a theory of what a cause lawyer “is,” and how best to take account of their activity in creating social change.
The Heart of Laissez Faire
The laissez faire lawyers of the last century were very concerned with encouraging economic growth, clearly believing economic growth and the ability of individuals to own property were the only ways to ensure individual liberty. They displayed a remarkable ability to translate economic theory as well as political and legal philosophy into legal terms and constitutional devices for their own ends. As Benjamin
23 Twiss argues in his book Lawyers and the Constitution; How Laissez Faire Came to the
Supreme Court, laissez faire lawyers were able to develop a constitutional doctrine of economic liberty that, while it did not last in its strongest form for a very long time, did have an impact on society during that period and certainly is still available as a tradition within constitutional law on which today's conservatives and right libertarians are able to draw. 8
'What I refer to as the laissez faire tradition is actually a set of arguments concerning the importance of the individual, free competition and the state’s appropriate role in economic regulation. Not all of the lawyers who can be identified as “laissez faire” in their ideology were in full agreement on every point. However, certain legal thinkers were extremely influential in shaping the libertarian position of the period. One such individual was Thomas M. Cooley, who published a highly influential work in 1868, entitled A Treatise on the Constitutional Limitiations Which Rest Upon the Legislative
Powers of the States of the American Union. The ideas embodied in this work, along with the influential position held by its author as a judge on the Michigan Supreme Court,
th gave laissez faire a theoretical framework that, coupled with the passage of the 14
Amendment, grounded the legal thinking of lawyers who represented business interests.
Cooley felt very strongly that all “class legislation” was undemocratic. In essence, he argued that any legislation that seemed to favor one class over another was
9 unconstitutional, whether it was favoring the rich over the poor or the poor over the rich.
This notion of equality before the law was very much a part of the legal landscape by the
peculiar kind of neutrality where 1 880’s. It required that the government exercise a
economic issues were involved, refraining from interfering on anyone’s behalf regardless
24 1
of the ment of their claims or the issues of social justice that develop when economic activities are structured in particular ways. 10
Twiss argues that the bar is a “great propaganda machine” that barrages the judiciary with “words, phrases, symbols and creeds weighty by the predominantly verbal
51 nature of legalism. He explains the challenge laissez faire lawyers faced prior to the acceptance of their views by some members of the judiciary, and argues that intimate relationship between ideas and crafting legal arguments is an activity requiring a great
deal of finesse, particularly when the lawyer is urging a position that is not represented in current precedent:
By developing constitutional devices and forms of words [lawyers] were able to gain entrance to the judicial mind, whereas the direct assertion of laissez faire doctrine was generally unsuccessful. The Supreme Court maintained its virtue inviolate against direct assault but yielded to the subtle, seductive persuasion of 12 phrases uttered in its own cabalistic tongue.
Twiss suggests that the fine art of persuasion was very much alive in the nineteenth
century, as lawyers whose pocketbooks, social standings, and their clients all benefited from the development of a laissez faire jurisprudence. The skill of these lawyers was very high indeed: they were quite often among the best lawyers in the profession and they often wore multiple hats in their public lives. Besides being lawyers, they were also businessmen and politicians, and many helped organize the bar associations in their states, or were leaders in pushing for the adoption of the Langdellian case law method in a newly structured law curriculum. 1 ' Such men included John Archibald Campbell who served on the U.S. Supreme Court from 1853 to 1861 before setting up private practice in
New Orleans, and William M. Evarts, who, besides serving as the U.S. attorney general,
25 secretary of state and a Republican Senator from New York and president of bar associations, also lawyered on behalf of large railroad corporations.
John Archibald Campbell has a special place in this story. Not only were his arguments in The Slaughterhouse Cases critical in the late nineteenth century to the development of laissez faire legal theory, but right libertarians use these arguments today when promoting their interpretation of the Fourteenth Amendment. Campbell, a southerner, had been a justice of the U.S. Supreme Court up until 1861 when he stepped down as the Civil War began. Though an ardent supporter of states’ rights, in The
Slaughterhouse Cases he found , himself arguing against a state statute and instead arguing that the Constitution, particularly the Thirteenth and Fourteenth Amendments required the federal courts to curb Louisiana s regulatory powers. His argument rested in part on the importance of understanding that the “citizens” referred to in the Fourteenth
Amendment were all of the citizens of the United States and not only the former slaves.
Though the U.S. Supreme Court ultimately rejected this claim on the basis that the Civil
War Amendments were intended to protect the newly freed slaves, Campbell’s argument has been resurrected in recent years as a means for protecting small business owners and other individuals against various types of regulatory actions as well as an argument
14 against redistributive policies. The Institute for Justice, the right libertarians who make this claim the most strongly, often do so on behalf of people of color. This will be discussed later in this chapter at greater length.
However, in 1873, the U.S. Supreme Court was unwilling to agree with this argument. Justice Miller, writing for the majority, finding instead that any business that served the public interest could be regulated. Justice Field, dissenting, argued that
26 individuals have an “inalienable” right to pursue their occupations. Like Campbell, Field read the Fourteenth Amendment to extend beyond the former slaves and provide protection against state interference to all citizens as they went about their various activities. Field’s position with regard to economic interests was grounded in an understanding of the importance of private property strikingly similar to the positions asserted by Cooley and other constitutional theorists of the period. Today’s right libertarians recall Field’s and Campbell’s positions with the same respect given to lone voices in a wilderness and they want The Slaughterhouse Cases overturned because the decision makes nearly impossible to fully protect economic 15 liberties today .
Campbell s argument and the arguments made by J. Field provided another attorney, William Evarts, known as the “prince of the American Bar,” strong ground on which to build work on behalf of corporate interests in cases such as Mum v. Illinois.
Evarts was known as an especially charismatic and 16 persuasive orator . Yet, Evarts' significance may have as much to do with his other activities as with his arguments in courtrooms. He was deeply involved in changes being made to the legal curriculums as well as the mobilization of bar associations.
It is no coincidence that the ability to make particular type of arguments became a
critical aspect of legal education in this period. While it would be incorrect to say that laissez faire lawyers were, all by themselves, working to reshape legal education Robert
Gordon has reminded us of the important relationship that developed between law schools and the law firm at the end of the nineteenth century. Law schools became an important training ground for lawyers in the “legal science,” an ideological activity in which lawyers attempted to make legal decisionmaking and argument regularized by a
27 theoretical 17 framework . The importance of this activity for liberal thought, as Professor
Gordon explains,
lies in the realm of personal and property rights, which define how far one may go in exercising one’s liberty and where one must stop to avoid infringing upon that o others. The state is instituted to define and enforce rights; its medium of rights-^ defimtion is law, which both facilitates liberty as freedom of action and protects liberty as security, including security against the 18 state itself.
The laissez faire lawyers of the period hoped to convince judges that the law required them to strike down laws that did not conform with the theory that the State should not interfere with the economic rights of individuals. This theory, through argumentation and careful legal analysis, became part of the jurisprudence of the
Supreme Court, despite its initial resistance to the position. But both the initial resistance and its later adoption can be understood as aspects of the legal process - not merely judges who had decided to “switch sides” or whose politics became the only means by which they decided their cases. Rather, through the manipulation of the principles of reasoned argument, laissez faire lawyers 19 were able to gain legal ground .
There were, of course, other things happening in the period that enabled the adoption of these views. Bar associations, often organized by the most conservative members of the bar, were developed to maintain the status quo. The importance of what a legal professional ought to be was a hot topic in this period, as the bar went through a process of professionalization. Associations, such as the Association of the Bar of the
City of New York (ABCNY) were organized throughout the U.S. In Michael Powell’s study of the ABCNY, which included William Evarts as one of its most pre-eminent members, New York lawyers utilized strict entrance requirements for their own association and advocated for greater entrance requirements for the bar more generally
28 during the late nineteenth century. Much of this was tied to their own sense of upward mobility and the belief that if the profession became over-run by -undesirables”, it would not be distinctive enough to provide 20 upward mobility to its practitioners . This suggests that for conservative lawyers, their interests and their theories were informing one another in ways that shaped their ideology.
The restrictive membership requirements for the ABCNY also provided lawyers with a safe haven where they could discuss their ideas, and a platform from which to argue for their world view. By excluding diverse opinions or interests, the lawyers were able to find a consensus based upon similar understandings of the world. This provided a focus on particular aspects of the legal landscape that, Powell demonstrates, has been difficult for the ABCNY to maintain in the twentieth century with a more diverse membership. The lawyers were able to claim a high level of expertise, and though
Powell argues that they were unsuccessful in many ways on the state and local level, their ability to influence national level policy was remarkable. By regulating the profession, they were able to legitimate the autonomy and special privilege of the legal profession; gain an honored place in society; and offer a means for distinguishing between various types of lawyers, thereby stratifying the profession and placing themselves on top. These lawyers included many of the same individuals working on behalf of the railroads and other corporate interests and so they also had powerful connections to business and society. Through their various activities they were able to change the legal landscape over the course of the last two decades of the nineteenth century.
Lawyers at the time were aided by their ability to be both autonomous from the state through the development of lawyering as a “profession”, and simultaneously they
29 were 21 allied with the state. As Halliday and Karpik have explained concerning the legal profession, its autonomy as a profession allows its members to struggle with the state when it took a form they did not support, while also providing them with some of the
22 tools for that struggle. Their connection to the state, through the judicial process and their relationships with judges, also enabled them to achieve their goals while others continued to struggle. They achieved this interesting relationship, according to Powell and others, through a conscious and concerted effort to professionalize their work - to bring it to a status that is above that of other work, and is therefore seen as more valuable.
Today’s New Right activists are able to use many of the same means to advance their position, through changes in society and the growth of the legal profession have made it necessary for them to blend old and new' strategies.
Those new strategies include pubic interest lawyering. This form of lawyering
th appears to have developed in the very late 19 century and throughout the twentieth, coinciding with the democratization process, the rise of legal realism and the growth of the legal profession itself. While there have been many groups over the course of the twentieth century working on behalf of the disadvantaged and collectively developing public interest law, two groups stand out because of their effectiveness in creating legal change as well as the duration of their campaigns. The American Civil Liberties Union and the National Association for the Advancement of Colored People’s Legal Defense
Fund are excellent examples of the development of public interest law and will be briefly discussed below in order to ground my later discussion of the rise of conservative public interest law.
30 Ihe ACLU, the N A_ACP and Public Interest Law
Two groups often cited as the forerunners of public interest law and that have
become nearly stereotypical examples of social movement lawyering are the American
Civil Liberties Union (ACLU) and the National Association for the Advancement of
Colored People (NAACP). Histones about both organizations, key actors, and key cases,
have been written that present their litigation activity in more detail than will be given
here- 3 Yet underscoring > the importance of their choices and the constraints operating on
them is crucial in understanding how particular sets of practices, rooted in institutional
settings and historical moments, developed and were later adopted by groups also seeking
to achieve political goals.
I he ACLU was established in 1920, though it had existed as the National Civil
Liberties Bureau since 1914. The Bureau waged a free speech campaign that has left its mark on U.S. constitutional law in part by giving birth to a free speech movement that continues today, as well as by producing both abundant legal precedents and abundant controversies.' 4 Not only does the ACLU litigate in the area of free speech, they also
litigate for rights of the accused, labor, privacy and abortion. Their strategies have always included education ol the public, lobbying, litigation and some grass roots mobilization. However, as Michael McCann has pointed out, the ACLU and other
groups like it, have tended to be organized and run by small staffs and specialized elites
26 rather than through a majoritarian process connected to grassroots movement activists.
Indeed, talented lawyers tend to be involved in the formation of these groups, and work to develop litigation campaigns taking the best advantage of the situation they face.
In the case of the ACLU, Harvard educated Roger Baldwin is often given credit for
31 shaping the vision of the organization. As Samuel Walker describes Baldwin’s impact, his perspective provided “a complex mixture of liberal social reform impulses and conservative reverence for the Bill of Rights.”” Both of which, according to Walker, were expressions of Baldwin's idealism.
Baldwin, as well as some of his other colleagues at the ACLU, preferred militant action to litigation because they felt that rights were not granted by those in power, but existed without being “granted” by the courts. Since the judicial process was one run by those “in power” who may not respect the rights of others, it was not a means by which their goals could necessarily be met. Baldwin and his colleagues treated the Constitution, the Bill of Rights, and the Declaration of Independence with what Walker compares to a religious zealotry. While others in the ACLU disagreed with Baldwin and ran test cases in order to use litigation as a platform to educate judges and the public, Baldwin and his
colleagues demonstrated, ran mailing campaigns, and read the Constitution and the Bill of Rights out to the 28 public at every opportunity . This latter “exercise in myth making,” says Samuel Walker, was successful in that Baldwin and the ACLU were eventually able to convince the public and the judiciary of the importance of the Bill of Rights and the protection of civil liberties, thus enabling a wide acceptance of libertarian principles. This
interpretation misses the fact that the mythmaking around the Constitution truly began at
29 its inception . While the ACLU’s activities may have reinforced those myths and arguably emphasized issues such as free speech and individual rights, making them the founders of that myth suggests they were not tapping into ideas already a part of
American consciousness. Regardless of how one interprets this mobilization of the
Constitution and legal rights, for our purposes here the more important element is their
32 effort to reach out to the wider public through these myths. Lawyers and activists, such
as Eugene Debs, Elizabeth Cady Stanton and others, had long known that this could be an effective strategy.
However, note, too that the ACLU as a small organization of elite lawyers was combining the elements of a small law firm with fundraising and public discussions of rights and liberties. In addition to the social mobilization through the language of rights,
it did litigate in very 30 strategic ways . Over the course of its history, Joseph Kobylka has
shown with regard to obscenity, they relied upon litigation during intervals when it
seemed they could win victories, and have left the venue of the courts when they thought the environment unfavorable to their success. They relied not only on their own staff, but also on volunteer lawyers and, quite often when faced with a hostile litigation environment, filed briefs of amicus curiae rather than 31 litigate test cases . This combination of organizational resources, lawyering and public showmanship are the hallmark of today’s public interest lawyers.
The NAACP has also been studied closely and serves as an excellent example of the way in which litigation combined with social mobilization has propelled the claims of disadvantaged individuals to the highest levels of law making. Georgetown Professor of
Law, Mark Tushnet, who clerked for Thurgood Marshall at the Supreme Court, utilized
an analysis of the NAACP to suggest that litigation is a social process where talented lawyers, the atmosphere in which strategies are conceived and decisions are made,
32 resources and community support, all shape the litigation effort . Tushnet attributes much of the success of the NAACP to the visions, energy and pragmatic decisionmaking of Charles Hamilton Houston and Thurgood Marshall. Their strategies included community mobilization and education through discussions of legal cases as well as strategic litigation. They worked to shape their cases with plaintiffs with whom judges would sympathize in venues where they had the best opportunity to win and could make the best use of their personnel and limited resources. While personalities were a key factor for both organizations, the claims concerning injustice and the ability to draw upon the symbolic power of rights and the Constitution were also critical elements to their work.
Like the ACLU, there was a split within the NAACP in its early days over the efficacy of litigation. Indeed, the Garland Fund, which provided money to both the
NAACP and the ACLU, had Roger Baldwin serving as its Chief Administrator at the time that the NAACP applied for funding for their desegregation campaign. The Fund was highly skeptical of the NAACP’s proposals, and this heightened the tensions within the NAACP over the correct course to take. According to Tushnet, opposition to the use of the courts was reinforced by a belief that litigation would work to reinforce the structure 33 of power rather than change its distribution . Economic remedies, rather than law, was advocated by leaders such as W.E.B. Dubois, whose disagreement with the
34 NAACP' s eventual decisions probably led to his split with the organization .
The NAACP and the ACLU shared some commonalities - both had talented lawyers working to shape their strategies, and both utilized multiple strategies to achieve their ends. While the ACLU litigated for greater protection of seditious speech, however, the NAACP was working toward greater racial equality. This latter difference cannot be understated. The NAACP, given the environment of the era, was faced with challenges that went beyond those of the ACLU’s. They advocated for rights that were not currently
34 recognized, whereas the ACLU typically was working to broaden rights that already existed. The ACLU’s achievements provided a greater space for protest through greater free speech and free assembly protections which enabled some of the work the NAACP
d,d. However, the latter established new rights, which among other things, would enable
public interest law in the future. While Brown’s symbolic significance was undoubtedly
important to the growth of litigation for social change, wins in cases such as N.4ACP v.
Button helped open the space for particular types of 55 lawyering. They helped to create a
new ideology that would be constitutive of behavior in the future. These precedents,
along with the patterns of behavior emerging in their achievement, laid the groundwork
lor future litigation campaigns. And, a future in which the opposition would be able to wield some of the weapons developed by the left-oriented groups.
Conservatives and Constructing an Alternative Public Interest
The conservative movement, which had diminished to some extent during the
Progressive Era, began to gain ground once again in the U.S. after World War II. The
Cold War, along with a swiftly changing economy that brought with it many societal changes, provided the basis for the development of a conservative movement that gained momentum through the 1960’s and swept the political scene in the 1980’s. An aspect of this movement that is both very interesting and not very well understood is its ability to hold various viewpoints together in a tension that seems very productive. Differences
among conservatives, in fact, are often lost in discussions about the conservative politics.
While the Christian Right remains distinguishable in many ways from more secular
aspects of the movement, even it seems to blend into the conservative landscape.
35 In the forties and fifties, the differences among the right libertarians and the
“traditional" conservatives were such that speaking of a conservative movement was
difficult. However, beginning in the mid-fifties, what conservative historian George
Nash refers to as “the great fusion” took place. This was a son of rapprochement among
various actors on the right side of the political 56 spectrum . In today’s political scene, the
Federalist Society is an excellent example of a conserve organization that enables this balance between various actors by providing a place where conservatives come together and argue their differing positions with very little involvement from “liberals” and
37 progressives . But when the first conservative public interest firm, the Pacific Legal
Foundation, came on the scene in the early 1970’s, no one discussed the distinctions within the Right and potential conflicts in developing conservative legal ideology.
Today, the right libertarians have become stronger politically and increasingly vocal in demanding recognition for their legal theory. One example of a conservative organization that is both identi fiably “libertarian” and becoming increasingly prominent nationally is the Institute for Justice. However, before turning to them, a brief review of the early stages of conservative public interest law seems in order. Here, the Pacific
Legal Foundation is an excellent point of departure as its history is representative of conservative public interest law more generally.
The Pacific Legal Foundation
The Pacific Legal Foundation (PLF) is important for several reasons. It represents the beginning of conservative public interest law, and remains one of the most
active conservative groups. It has been active in the area of property rights protection for
36 nearly three decades, and recently has expanded its scope both in terms of particular strategies and other areas of law. Like the left-oriented groups described above, conservatives use multiple strategies to accomplish their goals and the shifts in the
Pacific Legal Foundations strategies over time are indicative of the development of conservative legal activism. Case sponsorship was not a part of their strategies until changes in the judiciary created a 38 hospitable environment for them. And while they do react to liberal, or more progressive, legal activism, they do not simply combat one ideology with another, but rather engage and work with various ideologies to produce particular ends. Legal maneuvering is part of their professional activities. With regard to conservative lawyering, the ideology of liberal legalism mingles with conservative politics to produce their particular brand of public interest lawyering.
In 1973, the first conservative public interest law group was founded in
39 California, during the governorship of Ronald Reagan. Two members of Reagan's administration, Ronald Zumbrun and Raymond Momboisse founded the Pacific Legal
40 Foundation. They, along with the California State Chamber of Commerce and other
Reagan staffers including Edwin Meese, established the PLF hoping to provide a conservative answer to liberal public interest group activity, by providing the courts with an alternative view of the public interest which would “combat” the liberals’ use of the
41 courts.
According to the PLF, its founders wanted “to preserve the basic freedoms set out by the U.S. Constitution and to reverse the growing trend toward greater government control and influence into American lives. [The founders of the PLF] also saw an
increasingly politicized judiciary tending more and more to make laws rather than to
37 4 interpret - them/' Rather than advocating specific causes, the PLF’s goal was to address legal issues in California with particular attention to the legality of environmental impact reports. Over time, however, the PLF’s strategies expanded to include litigating precedent-setting cases, legal research, public outreach, monitoring government administrative proceedings, preparation of legal briefs and oral arguments, moot court sessions, on-site meetings, and other related activities. With offices located in six states, it’s 1995 budget was $2 million dollars, with some commentators reporting the PLF’s
1996 budget as twice that amount. 43
The PLF litigates cases throughout the country. As of 1996, they had approximately sixty 44 cases on their docket, and were involved in some way with others.
If a case is one the PLF would like to see brought before the Supreme Court, the PLF assists the plaintiff by petitioning the Supreme Court for a writ of certiorari. However,
45 their primary litigation strategy is the amicus brief. Through a careful process of monitoring cases around the country, the PLF files as amici in cases reaching federal
46 appellate or state supreme court review. The PLF claims their work has impacted many areas of law, including land use, endangered species, agricultural development, public finance and taxation, education, welfare, public contracting and employment, energy
development, national defense and tort liability. The list suggests the degree to which their litigation activity has expanded well beyond their initial narrow scope. Yet, they
remain focused on economic interests. This is informed by their belief that economic
4 liberty remains at the heart of individual freedom.
The PLF was just the beginning of conservative public interest law groups. After opening for business, the PLF contemplated the possibility of a wider conservative public
38 interest law movement. The PLF commissioned a study to detennine the need and potential efficacy of such a movement, and as a result of the study, the National Legal
Center for the Public Interest (NLCPI), opened in 1975. The NLCP1 was instrumental in establishing a group of public interest law foundations throughout the United States including organizations such as the Mountain States Legal Foundation and the
Southeastern Legal Foundation. Other groups were also established in the same era, though they were not affiliated with the NLCPI, including the Washington Legal
48 Foundation. Today, at least twelve conservative organizations form a nationwide network of non-profit organizations litigating “in the public interest” along the conservative ideological spectrum on behalf of 49 property interests. Still others work in
50 areas related to social policy. However, not all conservatives see the world in quite the same way, and as the Legal Foundations proliferated, they also drew the criticism of some conservatives who felt that economic liberties were not being defended as strongly as the should be in the highly regulated society in which we live. As discussed below, the Institute for Justice, once called the Landmark Legal Foundation, broke away from the conservative network of Legal Foundations in order to establish a right libertarian perspective among public interest law firms.
The Institute for Justice
William Mellor and Clint Bolick, both of whom fomierly held positions in
President Reagan’s administration, founded the Institute for Justice (1FJ) in 1991. The
IFJ claims to be the first right libertarian law group, and proclaims itself as the truest defender of civil rights and liberties in public interest law on both sides of the spectrum.
39 It is not directly affiliated with other conservative public interest groups, such as the
National Legal Center for the Public 51 Interest or the Pacific Legal Foundation.
According to the IFJ, Mellor and Bolick decided to start the organization out of a growing concern that other conservatives were not working hard enough to protect economic 52 liberties. Their goal at that time to was work to change the structure of civil rights, to “reclaim the moral high 53 ground” from the left. Today, IFJ plays an increasingly important role in takings litigation and conservative litigation more generally. It’s goal, as stated in its literature, is to “[advance a rule of law in which individuals control their destinies as free and responsible members of society.” This goal is strikingly similar to the desires for a regularized legal process where outcomes are predictable that was so salient among laissez faire lawyers in the previous century and seems to be a characteristic of liberal legal theory. The IFJ’s strategies for attaining this goal include holding “Policy Activist Seminars” for practicing lawyers, and educational
54 programs for law students. With an annual budget of $2 million dollars, IFJ is active in areas including civil rights, economic liberties (claimed as civil rights), interracial adoption, mandatory community service, private property protection, welfare reform, and
" school choice. 5
IFJ openly advocates judicial activism, maintaining that the inconsistent record of the legislative and executive branch in protecting essential rights and liberties requires the
judiciary to “serve as the bulwark of liberty.” An underlying assumption in this is that the judicial branch must strike down any legislative action that contradicts the
Constitution:
Unlike the executive and legislative branches, where the political dynamic makes any victory for liberty tenuous, courts can provide dramatic and
40 Ias r ‘“® s“'* s - Yet courts ca™°t fulfill this vital role unless f, presented With skillfully argued cases guided by a long-term philosophically and tactically consistent strategy.
Litigation, then, is fundamental to IFJ’s strategy and the importance of argumentation is
key here. Moreover, like the lawyers of 100 years ago, they emphasize having a theory that guides what cases they should take and what arguments they will make.
Their long-term goal is to overturn the 1873 Slaughterhouse cases and “restore judicial protection for economic liberty." In their analysis of the Slaughterhouse Cases.
Mel lor and Bolick maintain that this "relic" of constitutional law endangers “some of our
most vital liberties - especially the right to earn an honest living - completely
56 unprotected.” They argue that one legacy of this case is that “the ‘right’ to a welfare
check receives greater 5 protection than the “right to earn an honest living.” In particular, these activists are concerned that the case struck a “death blow” to the privileges and immunities clause, and that since the decision that clause “has not been
invoked to limit or strike down a single economic regulation, giving tragic prescience to the observation in Justice Field’s Slaughterhouse dissent that the majority opinion meant that the clause ‘was a vain and idle enactment which accomplished nothing.’” 58
Ultimately, then, the IFJ seeks to resurrect the privileges and immunities clause to
protect economic liberties. They make it very clear that their goal is not to return to the days of substantive due process. Mellor and Bolick argue that using other constitutional
privileges (such as the equal protection clause) is unsatisfactory in part because those provisions were never intended for use in economic regulation. However, they recognize
that this is not an easy argument to make in court, and so while they always make a claim in their briefs regarding the privileges and immunities clause, they also argue cases on the
59 basis of due process, equal protection and the takings clause.
41 Among their s, rateg.es, the IFJ sponsors cases as well as pursuing various oil, or means for achieving then ends. Such strategies include an act.ve grassroots campaign in
areas of the country where they are litigating, hoping to “build public support and foster
an ethos of economic liberty.- Part of this tncludes a media strategy that they clan,, has
been so successful in helping then, win their cases that it has robbed them of their ability
to bring strong arguments regarding the privileges and 6 immunities clause to court. ' They
also create “nontraditional alliances” that “cut across racial, economic and ideological grounds, citing a case in Denver in which 62 they allied themselves with the NAACP
The IFJ also files amicus briefs in the major Supreme Court cases. An excellent example of this activity comes from their work in takings cases. Richard Epstein, a
University of Chicago Law 63 School professor, is a frequent co-author of these briefs .
His scholarly work undergirds much of this group’s property theory. He maintains that all transactions between the state and individuals should be treated as transactions between private individuals. Therefore, he argues, the constitutional test to determine whether a taking falls under Fifth Amendment protection is quite simple: “Would the government action be treated as a taking of private property if it had been performed by
piivate some individual? If it is, then the taking must be compensated or deemed
64 unconstitutional .
Comparing New Right Lawyers
Other conservative groups, including the Pacific Legal Foundation, maintain litigation strategies and view them as important to achieving their goals. However, they understand the role ofjudges and courts in rather different ways. The PLF does not
42 advocate judge-made law, but instead argues that judges should show restraint and act as interpreters of the laws legislators make. This tends to be a more traditional conservative theory of judicial decisionmaking. The PLF advocates a “common sense policy” that charts a middle road between “laissez-faire anarchy and micromanaged, command and
65 control, bureaucratic tyranny .” The rights of citizens should always be placed ahead of the rules and regulations of bureaucracy, and judges should base their decisions upon what legislators require in the language of the statutes rather than their personal opinion.
Judges are to be restrained, and the laws they interpret are to be grounded in common
sense. Moreover, the law itself should be based upon “common sense” principles that balance the interests of all the parties involved. The PLF's position makes the legislature the arena for all political debate, deferring to elected legislators to know what is in the best interest of the people. This is sometimes known as “reasoned elaboration”, and is maintained by many conservatives who believe it is the best means of protecting citizens
from the tyranny ofjudges while also 67 maintaining the judiciary’s legitimacy .
IFJ, on the other hand, views the judge as an active participant in the law-making
process, reviewing and striking down any legislation that is unconstitutional. Rather than
concerning themselves with the “felt needs of the times”, it wants judges to review
legislation in light of the literal language of the Constitution. This perspective assumes
that not only is the State to be severely limited, but also that the majority will mandate
action that is not constitutionally sound. This contrasts with the more procedural understanding of legal decisionmaking advocated by other conservatives. In this respect, the PLF and other conservatives like them are reminiscent of the earliest legal realists, who were concerned that the courts would lose their place in political system if judges
43 were too 68 activist . The Institute for justice, in contrast , operates as it the courts were the ultimate defenders of personal freedom.
Th.s is one of the more important aspects of conservative activism, i.e„ the way in
which the different understandings of appropriate judicial roles manifest themselves
among various conservative positions. Indeed, the difference insofar as areas of law each organization is active in may be partly determined by the disagreement over appropriate
judging. The Institute for Justice, perceiving a more dramatic role, tends to litigate in many more areas of law. This suggests the depth of their belief in the judiciary as the
protector of personal liberties. Thus, while both groups have adopted strategies informed
by liberal legalism, the Institute’s position tends to be more reminiscent of the belief that
69 some have referred to as “the myth of rights’’. These themes will re-emerge in the
following chapters as specific sites of ideological production are considered in greater
detail.
Conservative Lawyers and Cause Advocacy
When turning attention to the late nineteenth century in U.S. law, it is often the
case that the first thing one thinks of are the events leading up to what is known as the
Lochner Era. In the way this narrative is usually constructed, the activists are found in the labor unions at the state level and are attempting to expand regulations to protect workers from exploitative business practices. As this story runs, these activists contend with a conservative judiciary that, particularly with regard to the U.S. Supreme Court, sees its chief purpose the protection of economic liberties. The interpretations of why the
Lochner era came to be and how to understand its culmination are many. " Yet, quite
44 often, these stories under-analyze the importance of how the judiciary became conservative, and the activism it required to shift it away from the position it had taken in The Slaughterhouse Cases. For this, it’s important to go back further, to the years following the Civil War when the United States was undergoing a fast and in many ways brutal industrialization process. During these years, the bar in the United States was also undergoing a transformation that would have lasting consequences for law and society.
While it’s true that one can go back before the Civil War to begin a discussion of the rise of laissez faire lawyers, their activity during Reconstruction is especially intriguing given the larger goals of this analysis. They were, in many ways, setting the pattern for conservative legal activism as it has emerged in more recent times. 1
The shape of this pattern and the practices that made it up, provided the ideological basis for laissez faire claims even as they shaped the understanding that
72 ideology . Laissez faire lawyers of the previous century and the libertarian right of today are ‘knowing participants ’ in the legal culture, whose knowledge involves a communal understanding 73 of the language of the law . Thus, their understanding of what are effective strategies and how best to achieve their ends is informed by their status as active participants in a professional terrain - a terrain including a particular language bounded by the rules of appropriate behavior and the possibilities for influencing judges. In the late nineteenth century, this professional terrain was developing as the rise of professions and the need for expertise grew. However, laissez faire lawyers also were part of that
professionalization, working on its behalf in the hopes that it would provide them with a means by which they could see their goals attained. These lawyers developed the grammar in which their twentieth century counterparts are schooled in and speak with
45 ease and appropriate etiquette.’* In both periods, lawyers can be seen working with ideologies, and through this work, they construct various ideologies depending upon their
.’ 5 audience As Benjamin Twiss pointed out in his study of laissez faire lawyers, they understand the landscape within which they work because they are part of it, and they choose to use language and other types of practices that will empower them and legitimize their claims before judges and 76 legislators .
Scholars turning their attention to right-wing movements and lawyers quickly find themselves in a terrain that seems surreal, with few theoretical guideposts available to assist them in developing coherent accounts of right-wing activism. Indeed, most of the definitions of what “cause lawyers” are, or more generally, what social movement activism is, connect these activities to 77 “system-oppositional” behavior . In these theories, the social activism is geared toward shifting the status quo or is situated in opposition to the dominant power 78 structure of the society .
Such an understanding assumes that all right-wing activists are happy with the
status quo. As scholar Sara Diamond explains with regard to the Christian Right, this is not necessarily the case. While right activism is supportive of some governmental
79 functions, it opposes others . As she pointedly remarks, “[w]ere the Christian Right to
80 achieve its wish list of policy goals, things would certainly be different .” By assuming that right-wing cause lawyers are only system-supportive, we preclude the possibility of some degree of opposition in right-wing activism. And, perhaps more importantly, leaving this out of our analysis decreases our ability to discern differences within the
81 right and among the various types of right-oriented movements . Finally, by assuming
that left-oriented activism is system-oppositional, we may also lose the insights to be
46 gleaned by asking ourselves to what extent such activism is also system-supportive.
1 hese refinements in our understanding of what it means to be a “left” activist and a
right activist may lead us to a greater understanding of the processes of social change, and the role 82 activist lawyers play in it.
I here are several tensions underlying the many definitions of cause lawyering.
One of the more important is a propensity for scholars to rely on notions of “moral activism” to distinguish it from other forms of lawyering. In most of these studies, the lawyering is portrayed as having the goal of changing society for “the good”. As Carrie
Menkel-Meadow “ writes, . . . definitions of cause and public interest lawyering that use change all seem to assume ‘change’ for the better (i.e., for more equality, empowerment and other Teft’-like reforms). There has been plenty of legal change in the last ten years, but most public interest 83 lawyers would hardly call it good.” That the right-wing has brought about changes is a critical aspect of why we must study them. Yet, as Menkel-
Meadow suggests, how we define our terms will depend on where we are situated and whether we are willing to concede our opponents may still be operating with a vision of
84 the public good and a morality based in a different worldview. However, if we allow ourselves to define a “cause lawyer” based upon our own definition of what the public good is and whether a particular lawyer agrees with us, we will quickly find ourselves unable to account for the remarkable ability of other activisms to achieve their goals.
Right-wing legal activists voice outrage with the current social paradigm because they see society as moving in a direction they find frightening or counter-productive.
Letting go of valued and time-honored traditions, argue these activists, cannot make progress; rather, progress can only be made if values are maintained and economic
47 development moves forward. For conservatives, especially libertarians, the distinction between the social and the economic is very important to the maintenance of a good society. When progressives discuss “the good society”, they generally are more concerned with correcting social injustice and believe strongly in the intersection between the economic and social. This intersection becomes a focal point for transformative politics. Conservatives, particularly the libertarians, see the economic and social as clearly separate spheres, and react when regulations or reforms are made that °o
to the heart of the intersection of the two. It is true that they have an economic interest in keeping the two separate. But it is too easy to simply attribute their rationale to greed and to ignore their deep belief that free markets will lead to free individuals. Libertarian
are lawyers in fact advancing a cause in what they believe is the public interest: liberty,
through economic freedom. Indeed, in contemporary politics, it may be possible to broadly define “left” and “right” political positions based upon one’s attitude toward the relationship between the social and the economic, and the role law ought to play in the maintenance of that relationship.
The lawyers studied here argue in the face of a changing regulatory environment that rights to private property and liberty of contract are infringed and require greater attention than they did at other times in U.S. history. Further they argue that any state
interference in property rights, including contracts and land ownership, is an infringement of personal liberty for someone, and that the state has no right to redistribute property or
regulate ownership without recognizing it as an eminent domain taking requiring compensation. Understanding these claims as distinguishable from yet related to other forms of conservatism is essential for understanding the political landscape in the United
48 States in its current form. It is also crucial for understanding the shape and reshaping of
U.S. constitutional law at the end of the twentieth and beginning of the twenty-first
century.
For example, see Lee Epstein, Conservatives in Court , (Knoxville: University of Tennessee Press, 1983); Lee Epstein and Karen O’Connor (1983), “The Rise of Conservative Interest Group Litigation,” The Journal ofPolitics 45 (1983): 479-489- Christopher E. Smith, Justice Antonin Scalia and the Supreme Court’s Conservative Moment (Westport: Praeger, 1993); David Schultz and Christopher Smith, The Jurisprudential Vision Justice of Antonin Scalia (Lanaham: Rowman and Littlefield Publishers, 1 996); Richard Brisbin, Justice Antonin Scalia and the Conservative Revival (Baltimore. Johns Hopkins University Press, 1997); and Sara Diamond, Not By Politics Alone; the Enduring Influence the Christian of Right (New York: Guilford Press, 1998).
2 Within political science, there is a long tradition of studying the relationship between state and society. In its early days, this work tended to over-emphasize the “goodness” of the U.S. system relative to other systems of the world, particularly underdeveloped or “third world” countries. See, Alfred C. Stepan, The State and Society: Peru in Comparative Perspective (Princeton: , Princeton University Press, 1978) for example. Closely linked to concerns over political culture and how institutional design effects democratic processes, this work was related in its goals to works by scholars such as Gabriel Almond and Sidney Verba, The Civic Culture: Political Attitudes and
Democracy in Five Nations (Princeton: Princeton University Press, 1963). Because this older literature was written in a period when U.S. scholars were focused on modernization and development of third world countries were playing to policy goals of the U.S. government, most of this work in political science did not analyze the United States. This new body of literature is often referred to as “new institutionalism” because it attempts to understand how institutions shape social relations. Other work in this vein but with a public law caste include Stephen Skowronek, Building a New' American State: The Expansion ofNational Administrative Capacities, 1877-1920 (Cambridge: Cambridge University Press, 1982); John Brigham, Cult of the Court (Philadelphia: Temple University Press, 1987); Rogers Smith,“Political Jurisprudence, the ‘New Institutionalism,’ and the Future of Public Law,” American Political Science Review 82
(1988): 89-108; Howard Gillman, The Constitution Besieged : The Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham: Duke University Press, 1993); and, Howard Gillman and Cornell Clayton, The Supreme Court in American Politics: New Institutionalist Interpretations (Lawrence: University Press of Kansas, 1999), among others.
3 Other types of conservatives come into this story, but focusing attention on one group puts into relief the differences they have with others. Also, the importance of understanding why “reactionary” activism occurs requires a parsing out of different degrees of critique of the government at a given time. Right libertarians, among the activists in the contemporary scene, are often labeled more “reactionary" than other types
49 of conservatives. Whether this is an accurate evaluation depends upon the technique for measuring what counts as “more reactionary- and goes beyond the scope of this chapter. However, learning to discern a right libertarian from “traditional” and “moderate” conservatives seems very important when one begins to read the literature comin° out of movements such as the property rights movements, which is the focus of much of mv work here and elsewhere.
4 This work includes (but is hardly limited to) Benjamin Twiss, Lawyers and the Constitution; How Laissez Faire - Came to the Supreme Court (Princeton Princeton University Press, 1942); Arnold M. Paul, Conservative Crisis and the Rule ofLem-; Attitudes ofBar and Bench, 1887-1895 (Ithacaa: Cornell Univrsity Press, 1960); Gabriel Kolko, The Triumph of Conservatism; A Reinterpretation ofAmerican History, 1900- 1916 (New York: The Free Press, 1963).
5 William Miller, “American Lawyers in Business and in Politics: Their Social Backgrounds and Early Training,” The Yale Law Journal 60, 1951: 66-76; Robert Gordon, “Legal Thought and Legal Practice in the Age of American Enteiprise, 1870- 1920,” in Professions and Professional Ideologies in America edited by Gerald L. Geison (Chapel Hill: The University of North Carolina Press, 1983).
6 Gillman and Clayton, New Institutionalist Perspectives', Gillman, The Constitution Besieged ; and Skowronek, Building a New American State.
1 There is already a large body of literature investigating the ideologies and the legal profession as well as progressive legal activism. Such works include Bruce Ackerman, Reconstructing American Law (Cambridge: Harvard University Press, 1984); Brigham, The Cult of the Court', Richard Abel, American Lawyers (New York and London: Oxford University Press, 1989); Pierre Bourdieu, “The Force of Law: Toward a Sociology of the Juridical Field,” The Hastings Law Journal 38, (1987): 805-853, translated by Richard Terdiman; John Brigham, “Professions of Realism,” in The Constitution ofInterests; Beyond the Politics ofRights (New York: New York University Press, 1996); John Brigham and Christine B. Harrington, “Realism and Its Consequences: An Inquiry into Contemporary Sociological Research,” International Journal of the Sociology ofLaw, 17, (1989): 41-62; Christine Harrington and Maureen Cain, Lawyers in a Postmodern World: Translation and Transgression (New York: New York University Press, 1994). A recent collection that addresses lawyers and their role in law from multiple perspectives is Richard Abel (ed.). Lawyers: A Critical Reader (New York: The New Press, 1997).
8 Twiss, Laissez Faire Lawyers, p. 4. Arnold Paul’s The Conservative Crisis takes another look at the conservative activism in the period and concludes that ideological strains eventually led to a moderation in the ideology of this period. His analysis provides important insights regarding the various conservatisms that are available on the ideological spectrum; but it also suggests that alliances may be very delicate, and when translated into law or played out in politics, require a certain moderation that many activists today seem unwilling or unable to recognize.
50 5 ,
’ F° r insightful discussions of Cooley, see Twiss, Laissez Faire Lawyers, as well kens, as Paul Lochner v. New York; Economic Regulation on Trial (Lawrence: The University"'versus Press of Kansas, 1998), pp. 97-100.
Cooley s position on the police power and economic regulation was rooted in his understanding of property, which he explains in detail in his other influential work Genera 1 Principles of Constitutional Law in the United States ofAmerica (Boston: Little. Brown ana Company, 1880). There he argues that the Constitution is clear in that the Fifth Amendment constrains the federal government from depriving individuals of property without compensation, and that the Fourteenth Amendment supplements the Fifth by providing that no State can take property without due process of the law. But more importantly, his understanding of what property is provides the basis for what is protected in these two constitutional provisions: “Whatever a man produces by the labor of his hand or his brain, whatever he obtains in exchange for something of his own, and whatever is given to him in the law will protect him in the use, enjoyment and disposition of’ 3 1 )- He that property (P- is whatever is recognized as property in the law, and that the law may withdraw the “attribute of property, and then any one may be at liberty to destroy it” (ibid.). His source for much of this is Bentham’s Principles of the Civil Code.
11 Twiss, Laissez Faire Lawyers, p. 261
12 Ibid., p. 254
13 On the social and professional backgrounds of lawyers in the period, see Twiss and Paul and just after the turn of the century, see William Miller, "American Lawyers in Business and Politics: Their Social Backgrounds and Early Training," Yale Lan> Journal 60 (1951): 66. Through a process of cross-checking for names of lawyers in other works, on the development of bar associations and the roles of these lawyers, see Charles Warren, A History of the American Bar (New York: Howard Fertig, 1966); and Michael Powell. From Patrician to Professional Elite: The Transformation of the New York City Bar Association, (New York: Russell Sage Foundation, 1988). Careful examination shows that many of the same names appear in all of these works, as these lawyers were
active in more than one area of public life.
14 For a discussion of Campbell's argument before the Supreme Court, see Henry G. Connor, John Archibald Campbell; Associate Justice of the United States Supreme Court 1853-1861 (Boston and New York: Houghton Mifflin Company, 1920).
15 See the discussion of The Slaughterhouse Cases (16 Wall. (83 U.S.) 36, 1873)at the Institute for Justice’s web page at www.ij.org. Further discussion of this case and its symbolic importance follows in the next section of this chapter.
16 See Twiss, Laissez Faire Lawyers; and Brainerd Dyer, The Public Career of William M. Evarts (Berkeley: University of California Press, 1933).
17 Gordon, "Legal Thought and Legal Practice," p. 82
51 19 Barry Cushman has written an excellent recent study of the New Deal that sheds light on why the switch in time that saved nine” has been misunderstood by many. See Cushman, Rethinking the New Deal Court: The Structure ofa Constitutional Revolution (Oxford: Oxford University Press, 1998).
20 Powell, Patrician to Professional Elite, pp. 34-35.
21 Terence C. Halliday and Lucien Karpik, Lawyers and the Rise of Western Political Liberalism: Europe and North America from the Eighteenth to Twentieth Centuries (Oxford and New York: Oxford University Press (Clarendon imprint), 1997).
23 See, Nan Aron, With Liberty and Justice For All: Public Interest in the 1980s and Beyond (Boulder: Westview Press, 1989); Jerold S. Auerbach, Unequal Justice; Lawyers and Social Change in Modern America (Oxford: Oxford University Press, 1976); Richard Kluger, Simple Justice; The History ofBrown v. Board ofEducation and Black America ’s Struggle for Equality (New York: Alfred A. Knopf, 1976); Peggy Lamson, Roger Baldwin; Founder of the American Civil Liberties Union (Boston: Houghton Mifflin Company, 1976); Michael W. McCann, Taking Reform Seriously; Perspectives on Public Interest Liberalism (Ithaca: Cornell University Press, 1986); Mark V. Tushnet.
The NAACP ’s Litigation Against Segregregated Education, 1925-1950 (Chapel Hill: The University of North Carolina Press, 1986); Samuel Walker, In Defense ofAmerican Liberties; A History of the ACLU (Oxford: Oxford University Press, 1990); Stephen L. Wasby, Race Relations Litigation in an Age of Complexity (Richmond: University Press of Virginia, 1995).
24 Some of the cases they litigated have included Schenck v. United States (249 U.S. 47,
1919); Gitlow v. New York (268 U.S. 652, 1925); and Miller v. California (413 U.S. 15, 1973), which remains the standing precedent on the definition of obscenity.
25 Aron, With Liberty and Justice for All.
26 Michael McCann, Taking Reform Seriously. v Walker, In Defense ofAmerican Liberties, p. 52.
28 Ibid., p. 53.
29 See, for an example of a discussion of this process, David Ray Papke’s Heretics in the ork Temple: Americans Who Reject the Nation ’s Legal Faith (New York: New Y University Press, 1998).
52 “ In addition to the large body of work studying law and social change cited elsewhere in this chapter, I apke s Heretics in the Temple has a very insightful discussion of this process.
1 See Joseph Kobylka, The Politics of Obscenity; Group Litigation in a Time ofLegal Change (New York: Greenwood Press, 1991) for a description of the changes in tactics the ACLU has made when the environment has changed in the area of obscenity and free speech litigation.
32 Tushnet, The NAACP Litigation Strategy.
" Ibid., p. 14-19. Tushnet reports that opposition to litigation as a means of social change was very acute. At one point, it prompted Charles Garland to comment that criticisms against the fund s radicalism were odd given that it was “assisting right wing movements at the expense of the more radical”. Garland was referring to the NAACP’s plan to campaign for desegregation.
34 Ibid., pp. 6-10.
,s 371 U.S. 415 (1962). In that case, the Supreme Court protected the ability of the NAACP to seek out and provide legal services for cases that were politically charged.
36 George H. Nash, The Conservative Intellectual Movement in America, Since 1945 (New York: Basic Books, 1996).
17 As part of my research, I attended the student meeting of the Federalist Society held at Harvard Law School in March 2000. Liberals and progressives do attend these meetings, though they are few and far between. However, the variation among conservatives was remarkable, even to someone who has lived in Utah and Idaho for a large amount of her life. Their willingness to engage in debates over theoretical issues was also remarkable, though there was a not surprising tendency to straw man and denigrate positions that could not be identified as “conservative”. Of course, the same is often true of liberals and progressives when they discuss ideas that are conservative. Indeed, in listening to various conversations where liberals and conservatives attempt to speak with one another,
I am often reminded of Lyotard’s notion of a differend, where the ability to communicate is frustrated because the parties are using what amounts to two different languages.
While I deal in more detail with the Federalist Society in other work, space limitations require the focus to remain on the right libertarian group, the Institute for Justice. On the concept of the differend, see Jean Francis Lyotard, The Differend: Phrases in Dispute (Minneapolis: University of Minnesota Press, 1988).
38 Smith, The Conservative Moment, has an excellent discussion of this process.
39 Lee Epstein, Conservatives in Court', Aron, With Liberty and Justice for All; Karen O’Connor and Lee Epstein, Public Interest Law Groups; Institutional Profiles (New York: Greenwood Press, 1989).
53 Momboisse served as assistant attorney general in then Governor Reagan’s administration, and in that capacity had litigated on behalf of welfare reforms challenoed by liberal public interest groups. Similarly Zumbrun advised the department of welfare 6 ^ lobbied °n ltS behalf in a state ^^ house heavily opposed to Reagan’s r^form^
Epstein, Conservatives in Court and Aron, With Liberty and Justice for All
Italics - PLF. Pacific Legal Foundation Web Page, www.pacificlega or® 5 ft ’ visited December 30, 1998.
43 Public Interest Profiles . 1996-1997. For the 1996 estimate, see David T. Kendall and Charles P. Lord, “The Takings Project: A Critical Analysis and Assessment of the Progress S Far,” Environmental Affairs 25 (1998): 509-587, citing the PLF’s 1996 Annual Report.
44 Ibid.; and the PLF Web Page at www.pacificlegal.org.
Traditionally, conservatives have relied upon the briefs of amicus curiae for much of their litigation activity. See Karen O’Connor and Lee Epstein, “The Rise of Conservative Interest Group Litigation,” The Journal ofPolitics 45, (1983): 479-489.
46 Kendall and Lord, "The Takings Project"; for a description of the use of amicus briefs by conservative groups, see O’Connor and Epstein, "The Rise of Conservative Interest Group Litigation."
47 PLF web page.
48 See Epstein, Conservatives in Court and Aron, With Liberty and Justice for All.
49 See Kendall and Lord, "The Takings Project." They list these groups as the PLF, the Mountain States Legal Foundation, the Institute for Justice, the New England Legal Foundation, the Defenders of Property Rights, the Southeastern Legal Foundation, the Northwestern Legal Foundations, the Oregonians in Action Legal Center, the Texas Justice Foundation, the Stewards of the Range, the Landmark Legal Foundation and the Washington Legal Foundation.
50 See Sara Diamond’s work for a run down of those involved in Christian Right Activism, especially Not By Politics Alone: The Enduring Influence of the Christian Right (New York: Guildford Press, 1999).
51 The National Law Center for the Public Interest (NLCPI) was set up in 1975 in light of research suggesting that the work of the Pacific Legal Foundation (PLF), the first conservative public interest law group, had been successful. The NLCPI was instrumental in establishing a group of public interest law foundations throughout the United States that includes organizations such as the Mountain States Legal Foundation and the Southeastern Legal Foundation. However, the PLF, as well as the Washington
54 .
Legal Foundation, are not directly affiliated with this larger network. For an in depth discussion of the founding of the PLF, see Epstein’s Conservatives in Courts.
52 See their speech given at the Heritage Foundation, found on the web at http ://wva\'. ij .org.
53 Ibid.
- 4 On the Policy Activist Seminars, see Kendall and Lord, “The Takings Project." Regarding their acti\ities, see the Institute s Electronic Brochure at www. ij.org.
55 Epstein and O'Connor, Public Interest Profiles, 1996-1997.
56 See the link to the Slaughterhouse Cases on the IFJ’s website at www.ij.org. The discussion here draws on material downloaded over the course of the last year, and updated on June 1 7, 200 1
57 Ibid. The single quotes around the word “right” in the phrase referring to welfare checks are the IFJ’s notation.
58 Ibid., citing Justice Field’s dissent at 83 U.S. 96.
59 Ibid.
60 Ibid.
61 Ibid. Mellor explains that this is because the wins have come through legislatures when state representatives see the vitality of their activism.
62 Ibid.
63 Epstein fits quite nicely into the tradition of lawyers who wear several hats. In addition to writing books and law review articles, he is also active in litigation, appears as a consultant on various news shows, and was at one time considered for a judicial appointment by President Reagan.
64 Richard Epstein, Takings, Private Property and the Power ofEminent Domain (Cambridge: Harvard University Press, 1985).
65 Robert K. Best, “A Common Sense Policy to Protect the Environment,” Monograph Pacific Legal Foundation, August 1997. Located at Series , Issue MS-4, www.pacificlegal.org/mngrph4.htm.
66 PLF Web Page.
67 scholars. This is not only an argument made by politically conservative lawyers and See for example the argument as made by Jeffrey Rubin in The New Republic's. In an Rosen article explaining how to tell “good” from “bad” nominations by President Bush,
55 argued that the “traditional conservative" perspective was that of deferring to legislatures, and that conservatives who looked to judicial activism for the protection of individual iberties were not “real” conservatives and would eventually weaken the conservative th cause. See The New Republic July 19 issue, , on the web at www.thenewrepublic.com.
Laura Kalman, Legal Realism at Yale, 1927-1960 (Chapel Hill: The University of North Carolina Press, 1986).
Stuart Scheingold, The Politics of Rights: Lawyers, Public Policy, and Political Change (Yale: Yale University Press 1974).
To name but a few of the more recent studies: Cushman, Rethinking the New Deal ; Gillman, The Constitution Besieged', and Kens, Economic Regulation on Trial.
One is reminded of Charles Tilly’s discussion of the repertoires of activism that enables activists to gain ground as long as that repertoire has salience within the society. For amplification, see Popular Contention in Great Britain, 1758-1834 (Cambridge: Harvard University Press, 1995). Sidney Tarrow expanded this point in Power in Movement (Cambridge: Cambridge University Press, 1998).
This understanding of the relationship between practices and ideology draws heavily from Christine B. Harrington’s work, particular Christine B. Harrington, “Outlining a Theory of Legal Practice,” in: Lawyers in a Postmodern World: Translation and Transgression (New York: New York University Press, 1994).
Brigham, Cult the of Court , especially pp. 51-54; see also, John Brigham, Constitutional Language: An Interpretation ofJudicial Decision (Westport: Westport Press, 1978).
74 See note 8 above.
75 Harrington, “Outlining a Theory of Legal Practice.".
76 Twiss, Laissez Faire Lawyers.
7 I borrow this term from Sara Diamond, Not By Politics Alone.
7S Austin Sarat and Stuart Scheingold (eds.), Cause Lawyering : Political Commitments and Professional Responsibilities (Oxford: Oxford University Press, 1998). This is certainly not the only work published on cause lawyering. However, as a remarkable compilation of essays by some of the leading thinkers on the subject, this volume represents of some of the tensions within the literature around the definition of a cause lawyer. The bibliography of the book can provide the reader with a thorough introduction to this literature.
79 For further elaboration, see the introduction to Diamond, Not By Politics Alone.
56 80 Diamond, Not By Politics Alone, p. 7.
This seems particularly important today, as the right wing movement appears to be undergoing some changes. For research purposes, I attended the National Student Meeting of the Federalist Society, held in March 2000 at Harvard University. The chief esson I took from the experience was the importance of comprehending the various forms of conservatism and reactionary politics. Some deeply felt disagreements among various conservatives were very apparent. These variations are reflected in the different understandings maintained by the PLF and the Institute for Justice described in this chapter.
An issue that always seems to arise in discussions left of and right politics in the U.S. is whether such a distinction is both valid and helpful in understanding politics. Italian political theorist, Norberto Bobbio, has argued that letting go of the distinction is helpful only to those who propose to do so. He points out that the distinction itself is historically grounded, and contingent upon the current political context. Bobbio’s insight regarding the efficacy of the distinction is valid insofar as distinguishing between broad patterns of behavior is always helpful in understanding the world we study and that arguing to abolish such distinctions has been part of the practices of political disputation for quite time. some However, it’s important to keep in mind that there are variations within these broad categories as competing ideologies interact, and that, at times, groups on the left can look very much like the right and vice versa. See Norberto Bobbio’s Left and Right: The Significance a Political of Distinction , translated by Allen Cameron (Chicago: University of Chicago Press, 1996) for a discussion on the importance of the distinction. For a discussion of why the distinction may no longer make sense, see David A. Horowitz, Beyond Left and Right: Insurgency and the Establishment (Urbana: University of Illinois Press, 1997).
83 Sarat and Scheingold, at Cause Lawyers , footnote 53, p. 58.
84 One is reminded here of the discussion William Connolly offers in The Terms of Political Discourse (Lexington: Heath 1974), in which he discusses terms such as “democracy” as “essentially” contestable in part because of the normative positions
speakers take toward them. Thus, what “democracy” is will be contested as long as the
normative positions towards democracy differ markedly. It is possible that “cause
lawyer” is essentially contestable in the same sense, because the scholars who are using it
do so as a way of staking out particular normative positions about the activity it is used to
describe. Thus, it may not be possible to fit conservatives under the rubric of “cause lawyer” for someone who sees this activity as always system-oppositional and always a left-wing activity. However, the disadvantage to such an understanding, as is described
here, comes with what it leaves out of theories of the legal profession, social change and social movements.
57 CHAPTER 3
GREEN METAPHORS:
MOBILIZING PASTORALISM AND TAKINGS
Introduction
In the United States, a movement concerned with the protection of private
property rights arose during the 1970s and gamed grassroots 1 support during the 1980s.
This conservative movement has been critical in American politics, but has not received
the attention other, more progressive movements, have received. Many wealthy and politically important individuals are related to the movement in one way of another, including the former Secretary of State, James Baker; elites within the legal profession, most notably Richard Epstein, current acting dean of the University of Chicago Law
School; and executives in corporations, particularly within the forestry and mining industries, hi addition to these elites, the movement also has a strong grassroots element that is based mainly in the western part of the United States, though it has been expanding over the course of the last decade. These characteristics make analysis of this movement difficult to fit in the social movement literature, which tends to base its theones on piogressive reform and grassroots efforts. However, these attributes also make this movement an excellent opportunity to study the complex relationship among ideas, material interests, and actions that produce ideologies.
This research develops a framework for understanding the property rights movement through a constitutive analysis focusing attention on legal forms and pastoral
ideas as they shape activists" understandings of the world and its possibilities. Law constitutes the fervent belief in a right to private property, and these activists turn to
58 culturally powerful pastoralism when making their legal claims. Yet, pastoralism does not remain untouched in this interaction, and we see it emerge in a form that speaks to the beliefs about ownership adhered to by these conservatives. In particular, I will focus on the ways in which it is embodied in what I refer to as “green metaphors”, (i.e., highly symbolic rhetoric used particularly in arguments concerning environmental regulations) and works alongside a liberal legal ideology that emphasizes the importance of private property to individual development. To clarify these relationships, I contrast the way property rights advocates understand the importance of the earth and ownership with the understandings of environmentalists. I suggest that for the private property rights movement, beliefs about property shape pastoralism so that it emphasizes a husbandman who cultivates the earth, thinks of land as a commodity, and relies on notions of individual ownership that enable the earth's cultivation. For environmentalists, on the
other hand, who are influenced by a notion of property that has more to do with its use for the public good, pastoralism emphasizes a husbandman who protects the earth and
2 it in its maintains most natural form (i.e., with little or no human development ).
Property rights activists often utilize the Fifth Amendment of the American
Constitution in making claims that regulations involving the environment are takings of private property and must be compensated by the federal government in order to be
constitutional. The Fifth Amendment's “takings clause” embodies and reinforces a strong
belief in the importance of private property. Law is constitutive of and constituted by the
strong emphasis placed in American culture on the importance of the wilderness and
“western expansion” - i.e., the development in the nineteenth century of the western
lands in the United States. I argue that, despite the idea that the wilderness is now
59 closed”, private property rights activists continue to operate as though there is land to be cultivated and requiring development in order to maintain the power of the United States and provide for its citizens.
I draw from interviews and movement literature to provide a content analysis of the language and ideas used in the debates concerning one particular type of taking - one that reveals the way in which discursivity opens a term such as “taking,” with a strong meaning rooted in the law of the U.S., to resignification by shifting the thing taken to not only include land or economic expectations, but also the flora and fauna. Yet this
meaning remains closely linked to law. As part of the environmental regime, animals and
plants are elements of an ideology of property that requires they be used or protected on
behalf of the weal. common The particular law that is important here is the Endangered
Species Act, particularly Section 9, which makes it illegal to “take” species from their
habitats, or to degrade the habitats in any way that may harm any endangered or
threatened plant and animal life that exists there. This is often referred to as a “species
taking.” These two meanings of “taking”, then, become a bit confusing as some use the
term to refer to a taking of their private property, while others use it to refer to a taking of
endangered species. And often, both terms are used in the same conflict.
I begin this analysis with a review of scholarship identifying and analyzing
pastoralism in American culture. In particular, I draw heavily off the work of Henry Nash
Smith and Leo Marx, scholars in American Studies, who have studied pastoralism in
American culture from the pre-colonial period through the 1960s. My intention is to
extend their insights regarding pastoralism to the realm of the cultural politics of law.
Much of this work focuses on the debates concerning the spotted owl in the Pacific
60 Northwest, which was very heated in the early 1990s and is still remembered in the popular press in various discussions 4 of environmental issues. The dispute was eventually taken to the Supreme Court, where the question of how to define a “taking” under the
Endangered Species Act 5 was at issue, along with what, if any, compensation was required by the go\ eminent when its action involved this particular type of regulatory
6 taking.
After a brief discussion of the importance of ideas concerning land in law and
culture, I review the studies on pastoralism in American culture. Then, shifting to the
present, I uncover representations of pastoralism as they emerge in contemporary takings
debates. Whereas Smith and Marx found them in use as writers attempted to come to
terms with the jarring effects of industrialization on society, I find that the images emerge
and are most salient when conservative activists perceive that the boundaries separating
the individual and the state, set by law, are under siege. In both analyses, we see a state
undergoing a transformation in the structure of its institutions, and pastoralism emerging
as a means of persuading citizens that one form of the state is better than another. The
green metaphors I discuss, which are adapted to the property rights cause, suggest their
high value as cultural capital to be drawn upon by activists wishing to convince people of
7 the rightness of their claims on both sides of this issue. Finally, I conclude that their
importance has not diminished over time, but rather remains a vital part of the culture in
the U.S., adaptable by various political positions, yet powerful in their ability to provoke
emotional and strong partisanship.
61 1
Language, Law and l and
Various scholars have stucbed the relationship of language and law, often times
foeusing on the language used in the development of doctrine, or in the various rhetorical strategies employed by lawyers. However, recently, some scholars have turned their
attention to law's constitutive dimension in society, seeking to understand how it operates
to structure society, reproduce it, and shape the legal 8 consciousness of its subjects. Some
constitutive theorists have attempted to grapple with law and its relationships to social
movements. Here, the language of law as it structures everyday life comes into play,
suggesting that social activists understand their possible strategies and tactics as law
shapes them. Other scholars, including John 10 Brigham and Diana Gordon (1996), have
described law’s constitutive effect in shaping disputes over public space and landscapes.
As Brigham and Gordon argue, the constitutive perspective finds law at the core of
1 political activities. In takings debates, property law also constitutes many of the
political activities of property rights activists and environmentalists, providing them with
the language tor their claims and counterclaims. Yet, law is not alone at the core,
structuring these disputes and creating possibilities for activists. The pastoral ideals are
also there, providing a medium through which activists on both sides make claims
regarding the proper relationship humans should have to their environment. Property lawr
and pastoral ideals together inform the political possibilities and strategies utilized by
activists even as they inform their understanding of what the law says and what its
function is in this terrain. In this way, pastoralism and law become mutually constitutive, each reinforcing the other and both constraining ideas while simultaneously creating the space in which the politics of property play out.
62 The land, especially western land, has a special place throughout the history and culture of the American, and pastoralism has long been associated with the area west of
the east.” The belief in Manifest Destiny, the myth that United States has a special place in world history, was constituted in part through a combination of three beliefs: that God had sent the colonists to settle in the New World; that the wild lands west of the thirteen colonies were intended to be cultivated; and that an existence away from “civilization” was less than human. Yearnings for the space, coupled with the need for that space to be civilized into a garden, were among the key elements. In the early part of the nineteenth century, the possibility that the western part of the continent could be used to fulfill a destiny God had ordained for the United States was especially strong and it became the rationale behind colonization. Henry Nash Smith demonstrates that western expansion was imbued with the belief that movement westward would spread an idyllic notion of simplicity and contentment 12 throughout the continent . Expansionism was fueled by a belief that a ‘fee-simple empire’ could be developed where individual yeomen would work their land and provide for themselves. These were the ideal citizens in the new republic, and though there was variation in the way these ideologies developed in different parts of the country, the dominant theme that the world was seen as a garden to be cultivated by humans - a cultivation process ordained by God - was widespread.
The relationship between these beliefs in the destiny of the United States and the myth of the garden were important in part because they were closely linked to capitalism and the beginning of industrialization. From the time of its founding, capitalist economics
14 this and American law have had a very close connection . As the corporation developed, connection was reinforced, and throughout the nineteenth century there was considerable
63 tension at all levels of government over the degree to which it could regulate the
activities of corporations, which finally established themselves as individual legal
subjects in the second half of the 15 century . While in recent years, law scholars have
moved away from studies of property relations and economic liberties, more recently and
in part because of the influence of conservative movements such as the property rights
movement, some scholars have 16 called for a re-examination of this connection .
Conservative law scholar and federal judge Richard Posner has shown us the way
in which economic rationality proliferates in American law, but the debates that are
described in this paper do not always seem particularly 17 rational . They do, however,
seem guided by a strong belief that the U.S. will not be able to fulfill its role in the world
if the line demarcating the public and the private spheres, long an important element of
liberal political theory, is not maintained. Part of this sense is a version of a Manifest
Destiny myth within American culture that proliferated throughout the nineteenth
century. However, the contemporary property rights debate tends to offer less discussion
of God and brings more hints and reminders of an isolationism that seeks to keep the rest
of the world out of the United States. Thus, the link between law, changes in society and
the use of metaphors of gardens, landscapes and the wilderness are all part of a discourse
that is conflictual in nature with political opponents that maintain very different positions.
• • i o They do their battle in a rhetorical space, but the outcome has physical consequences.
American law, particularly that reflecting property values with a strong
connection to a myth about the garden, has a parallel in British law. Recently, Eve
Darian-Smith has shown us that the myth of the garden has been important in shaping
resistance to the introduction of the channel tunnel in the UK. The symbolic importance
64 of the oak tree and of the land to the common law tradition is not unlike the way pastoralism, a genre of landscape symbolism, works in the takings debates described here. Importantly, Darian-Smith notes,
law is intimately connected to visual, sensual and textural phenomena, and hence the need to explore how an aesthetic redefinition of people's view of their material, symbolic, and metaphoric landscapes influence how they experience the powers that order specific territories and shape 19 related forms of morality .
Darian-Smith reminds us that law is not merely in the pronouncements of judges; rather, to really grapple with the intimate relationship law and society have with one another, one must also interrogate the way in which “space” is understood as well as the ways language and aesthetics constitute our understandings of this relationship. As David
20 Engel tells us, law is “self-consciously spatial in orientation ...” Law and power are intertwined with space, and this link is very apparent over debates about the proper use of land. Individuals with a great deal of power are involved, and their ability to gain political ground is about both empowering themselves in the face of governmental regulations, and reproducing the power relations that have long structured our society.
Pastoral ideals come into play in part here because they have traditionally been a part of the way people in the U.S. have understood the importance of land to the ability of
individuals to be independent, owning a space that is free of governmental intervention.
The use of natural resources, shifts in populations between various areas where there is work, and the important ways in which city zoning and borders are in part determined makes this an important area in understanding geographic power.
Eve Darian-Smith and Nicholas Blomley have both pointed out that Michel
21 Foucault wrote insightfully about the importance of the politics of space . Darian-Smith
understanding the suggests that the link between space and govemmentality is critical for
65 interconnections of space, law and power. Foucault argued that beginning in the nineteenth century, a form of the state developed which relied upon experts and social science to perform its regulatory functions. Govemmentality, he explains, is a form of government concerned with the control of population and the “correct” management of people and goods. The property rights movement provides a special opportunity in this regard when we understand that, while shaped by the law of the state, to some extent this movement represents a campaign of resistance against govemmentality through the language of rights. Foucault's critique of this language is well known, but as Kirstie
McClure pointedly notes, even Foucault refused to give up the notion of “right” entirely, though it is unclear what the form of “right” was that he believed remained important for
2j struggling against disciplines and disciplinary powers. Foucault is clear that calling
upon the ancient right of sovereignty is not an effective means of resistance. Instead, he
argues for “a new form of right, one which must indeed be anti-disciplinary, but at the
24 same time liberated from the principle of sovereignty .”
Another reason that the strength and vibrancy of the property rights movement is
interesting for social researchers is that the form of “right” these activists call upon
invokes the power of the state to protect them from an administrative apparatus they
believe has gone beyond its constitutionally assigned powers and infringes the rights of
individuals. This is not their only strategy for resistance. The science of environmental
administration as well as the expertise of bureaucrats is delegitimized by these activists
and defied through a counter-narrative in which errors in environmental research are
From here, pointed to and used to draw into question the expertise of administrators.
administrators are really partisans property rights activists suggest that these non-expert
66 who abuse their power and have become authoritarian in their governance. They
adamantly reject the mechanisms by which the state has exercised power over regulatory
issues for the las. several 25 decades . Belief in the rule oflaw is very important to these
activists, particularly with regard to whether administrators have the authority to regulate
the use of land when an individual or corporation holds its title. By understanding these
conflicts through a discourse of space, we can see the intersection of geographic
knowledge with law. And, we can see the way in which boundaries are contested - both
the physical boundaries of property lines and the symbolic boundary that lies between the
individual and the state. Pastoralism, as a symbolic system through which these claims
are made, provides these activists with a strategy they make use of simultaneously with
rights discourse, and which together constitute their understanding of the "correct” use of
space.
Pastoralism in American Consciousness
Leo Marx begins bis description of the pastoral ideal as it develops in the
American consciousness with a discussion of the classic Virgilian mode, in which the
good shepherd withdraws from the world into a green landscape where peace and
harmony are expected to rule his life. At the time North America was colonized, the
European colonizers looked to this classic ideal to define their activities and shape a
destiny for themselves - a destiny that was premised upon a retreat from the “world” (i.e.,
Europe) to begin their lives again on a promising new “virgin” continent. In using
pastoralism in this way, the settlers lifted the dream found in Virgilian pastorals from its
literary context, making it a part of the culture that still endures. Marx goes on to argue
67 that there are really two types of pastoralism working in American culture: one is
“popular and sentimental” 26 while the other is “imaginative and complex.”
The first can be found throughout our culture in the ideals of “nature” and
“landscape” and is less a particular expression of thought than a feeling shared by a great many people. This feeling Marx , suggests, is insinuated throughout our culture, and manifests itself in several kinds of behaviour, including the impulse to live outside of cities, and the desire to live in a “natural’ environmentA This sentiment also constitutes behaviour such as the localism opposing national government, the favor shown to farmers in agricultural policy, and state electoral systems that give a great deal of power to rural areas. Even recreational activities, including the devotion to hiking and the “wilderness experience”, are at least partly structured by this notion. This type of pastoralism, Marx explains, has structured taste in literature, making classics of authors such as Mark
Twain, Ernest Hemingway and Robert Frost. Television westerns and Norman Rockwell magazine covers, as well as the use by advertisers of natural settings to sell cigarettes and
automobiles testify to its infiltration into popular culture.
Marx was not alone in seeing pastoralism as a constitutive element within
American culture. One of his mentors, Henry Nash Smith, suggested in 1950 that the
“myth of the garden” guided much of the thinking about social progress and its relationship to the environment during the eighteenth and early nineteenth century. The
central character in this myth was the western farmer, whose agrarian activities would
provide the ‘fee-simple empire’ necessary to the destiny of the United States as a place
highly with free citizens. The roots of this myth can be found in the writings of many
Jefferson. influential persons of the period, including Benjamin Franklin and Thomas
68 Franklin, for example, in the years just following the establishment of the United States, fretted over what he believed was idleness and extravagance within the major cities of the original thirteen states. However, he felt that the expansive land to the west, and the hard- working frugality of the farmers settling in that area, would save the country from the bad habits of the east. He characterized these fanners as industrious and frugal. He explained in a letter in the late 1780s:
The great business of the Continent is Agriculture. For one Artisan or Merchant. I suppose, we have at least 100 Farmers, by far the greatest part 30 Cultivators of their own fertile Lands...
Smith argues that such views were common currency throughout the late eighteenth century. These views were closely tied to the belief that the land farmers owned made them independent, provided social status and personal dignity, and that close communion with nature provided them with happiness that was not possible when work took them away from fresh air and natural surroundings.
For Thomas Jefferson, the political implications of these ideals were foremost in his mind. He believed the farmer, a husbandman of the earth, was the rock upon which
31 the United States was founded. He believed that they were independent economically and morally from the coercion of others, and thus, they were well suited to have the responsibility of voting. Jefferson saw western expansion as a guarantee of the ability of the U.S. to maintain its republican institutions. He believed that western expansion could continue for several centuries before the U.S. would suffer from the same overcrowding and subsequent depravity that he believed Europe suffered from. Thus, he advocated a policy of fostering agriculture and enabling movement westward.
The views by men like Franklin and Jefferson eventually developed into two forms of agrarianism - one northern and one southern. While space does not permit a full
69 description of both, what is important is that these beliefs were held until well into the
1800s, and formed the basis for arguments made during the 1830s and 1840s that convinced many to head westward, seeking their own land and independence. It persisted quite strongly through the 1860s, when the Homestead Act (1862) was passed. In part this legislation was passed because its supporters convincingly argued that it would enact the agrarian utopia that had been 33 one of the foundational myths of the United States.
Yet, once the Act was passed, the settlers quickly learned several lessons: large deserts lay to the west that were difficult to cultivate; not enough grass grew in many places, making cattle and sheep herds difficult to maintain; Native Americans were willing to fight for land they had held for thousands of years; and even when they found land on which they could grow crops, the holdings they were given through the law were too small to maintain a family in a way that made them economically independent and increased their social status. Smith argues that the notion of Manifest Destiny, along with the drive to establish small homesteads throughout the West were in part shaped by pastoralism. But he continues that ideas of the world as a garden to be cultivated by man gave way under the pressures of industrialization and the harsh realities of everyday existence that settlers found in the West. As these contradicted the vision elites in the east advanced in order to encourage westward expansion, the belief in the world as a garden to be cultivated gradually receded.
While contradicting this last argument and finding the myth of the garden alive well into the twentieth century, Marx extended Smith's ideas and suggested places where
34 pastoralism continues in our culture. Marx suggests the aspect of pastoralism that
70 appears most attractive to popular culture is the idea of a “natural landscape”, with little
or no cultivation and in which nothing artificial exists. He explains:
[T]his impulse gives rise to a symbolic motion away from centers of civilization toward their opposite, nature, away from sophistication towards stmphcity, or, to introduce the cardinal metaphor of the literary mode, away 35 from the city toward the country.
Early on in his book, Marx argues that had pastoralism existed only within popular culture we would dismiss it as a means of escaping reality en masse. However, as it is also the site where much of our greatest literature has been grounded, Marx suggests it provides us with a unique opportunity for understanding the relationship between high
36 and popular culture.
Of specific interest to this paper is a distinction Marx finds within the pastoral ideal between two types ideas of the “garden” that developed during the colonial period.
One notion is the New World as a “garden” and the other cultivated plots of land adjacent to people's homes. Marx's example of this distinction comes from the writing of Robert
Beverley, a Virginian planter who published a work entitled The History and Present
State Virginia 7 of in 17057 Beverley wrote the book as a reflection of the differences between the Virginia he knew and the Virginia he found described in other histories. He was aware that the New World had been depicted as a “natural” garden, which he believed referred to the Garden of Eden as a pristine place, protected through the ejection
of man from the degradation brought by man's fall.
Beverley also used the term “garden” to refer to the plots of land requiring
cultivation, similar to many of the beautiful gardens he had seen during a recent trip to
London. He suggested that the natural beauty of Virginia was one reason cultivated gardens were hard to come by in the New World. Beverley's confusing use of the term to
71 connote both types of space, Marx explains, is also linked to his perception of the native
peoples as simple, autonomous and happy in their independence, living lives that
Beverley sees as part of 38 an ideal existence in the natural Garden . Yet, Beverley also
sees the natives as slothful and indolent, and while tying the happiness and simplicity of
the natives existence to the Garden, he also forcefully argues that this is not the
appropriate role for humans and that this type of laziness finds its source in the lush
greenness of the landscape. In essence, Marx describes Beverley as groping for a place
where beauty and simplicity can be combined with the refinements of “civilized society ,”
- in short, a cultivated space.
But we can also see in Beverley's belief a link to what Peter Fitzpatrick describes
as the opposition of the state of savagery to the order of law. Fitzpatrick argues that
critical to the development of modem law was the belief that indigenous peoples lived in
a volatile and unfixed state. Because they were not “tethered” to property through
ownership, they did not cultivate the earth in a constructive way.^ This interpretation of
indigenous life was juxtaposed against a belief that civilized society's rule of law fixed
and stabilized the relationship between land and its owner. Thus, we can read Beverley's
views on gardens as advocating a cultivation of space enabled by law in part because he
yearned for that relationship with nature that Benjamin Franklin, his contemporary,
believed was so important to the happiness of human beings. The activity of cultivation
itself was important because through it civilization also comes into existence in the
spaces where farmers work and is a basis for happiness. It is noteworthy, here, that the means by which Native Americans are relegated to the status of sub-human has to do with this civilizing process. As Fitzpatrick has noted, at times the perception that
72 indigenous culture lacked law was translated into a belief that they also lacked 40 rationality. The ability of reason remains the princtple means by which humans distinguish themselves from all other animals.
This “othering” is interesting in the present context, because while not speaking directly of Native Americans here, the same belief system that tied stability to law works
to create a fear of uncultivated nature, and seems deeply implicated in the idea that environmental regulation (particularly with regard to pollution controls, endangered species protection, etc.) will lead to the end of civilization. Further, this distinction between the natural garden and the cultivated garden has tremendous utility for understanding how takings debates have been shaped by pastoralism in the late twentieth century. For analytical purposes, I will distinguish between the two types of gardens by using the term ‘ garden” to connote cultivated spaces and landscapes, and “wilderness” lot those aieas left untouched” by human hands. Turning now to the spotted owl debates, I will describe the play these images have in shaping conflicts over property ownership and protection of wildlife habitat.
Endangered Species and Green Metaphors
In 1993, the Sweet Home Chapter of Communities for a Great Oregon, along with a number of other organizations, filed suit in district court in the hopes of having a number of regulations promulgated by the Fish and Wildlife Service invalidated.
Primarily, they challenged the Department of the Interior's use of the language
“significant habitat modification or degradation where it actually kills or injures wildlife” to define a “species taking” under the Endangered Species Act (1973). Sweet Home
73 argued that this definition exceeded the authority of the Department of Interior, and fell well 41 beyond the scope of Congressional intent. They alleged economic injury due to the listing of the red-cockaded woodpecker as an endangered species and the northern
4 spotted owl as a threatened species. " Their complaint involved Section 9 of the
Endangered Species Act (ESA), prohibiting the taking of species listed as endangered or threatened under the Act's authority. Of particular concern for the activists was the degree to which habitat degradation is included in this prohibition. The ESA is intensely focused on habitat preservation. The Congressional Record suggests that Congress was convinced that hunting and degradation 43 of habitat were among the chief causes of species loss.
Section 3 the of Act defines a “taking” to include any actions that “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect or attempt to engage in such conduct.”
The Department of the Interior and its administrative agencies have interpreted this language broadly, reading “harm” to include
an act which actually kills or injures wildlife. Such activities may include
significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavior patterns, 44 including breeding, feeding or sheltering.
Thus, any type of behavior that causes habitat to be degraded comes to constitute a
“taking” of the species - something strictly forbidden by the Act if the species has been listed as endangered or threatened.
The Supreme Court, in ruling against Sweet Home, reversed a lower court's
45 decision. Environmentalists and the Fish and Wildlife Service hailed Sweet Home a victory, while the property rights movement understandably viewed it as a set back.
However, they were also optimistic that the attention given in the national media as well as the growing controversy around environmental takings would give impetus to a
74 movement in Congress to “gut” the ESA. They also hoped that new legislation giving property owners easier access to courts would also be 46 facilitated in the wake of the case
Environmentalists charged that changes to the Endangered Species Act and other environmental laws represented “a wholesale assault on laws that protect the country's
47 air, water and natural resources .” With regard to the decision in Sweet Home , environmentalists proclaimed a victory but also showed a marked concern over the reaction in Congress. A few months after the decision was handed down, an article appearing in Sierra , the journal of the conservationist group the Sierra Club, argued:
The problem with this country's plant and wildlife is that they are unable to distinguish between private and public land. As it is, only half of the endangered species in the United States are found on public land. The ESA protects all equally, requiring owners of private property to protect critical habitat and to get permits if their use of the land might cause the “incidental take” 48 of a protected species .
The author of the Sierra article clearly sees the ESA as having an important role in protecting plants and animals. The “wild” world is to remain unfixed, and thus require a particular type of protection - one that requires civilization to recognize the importance of plants and animals that are not used for economic gain of the owners on whose property they unfortunately live.
In a similar vein, an article in another conservation-oriented journal. National
Wildlife supported the idea of making property owners “custodians” of wildlife:
All across America, as human activity nibbles away at what remains of natural habitats, thousands of property owners are finding themselves important custodians of the nation's rarest species of plants and animals. And. ..many fear that some tiny insect or flower protected by the Endangered Species Act could bring a stampede of bureaucrats telling them what they can and can”t do on their own property. But except for a 49 few notorious confrontations, this fear has proven exaggerated .
75 The article goes on to describe the red tape many landowners go through in order to gain
permits to build or use their land as they desire, while simultaneously supporting the
endangered species living on their property. Human activity is seen as “nibbling away” at
the wilderness, in a trope emphasizing that humans, who live outside of the wilderness,
consume it through a process of cultivation. The writer's point is that within the
regulatory scheme, there are ways through which landowners can both use their land as
they wish and maintain critical habitats for endangered species. The pastoral idea
interacting with law and reconstituted by it, suggests to the writer that humans and nature
need not work against one another, but can co-exist. The writer argues that landowners
who truly love wildlife will willingly sacrifice their time and money to work through the
red tape and obtain all of the necessary permits. In all of this, environmentalists react to
what the law is, what it was and what it will be. Their ideas of what are possible are
shaped by their legal understandings. But there is more at work here. The distinction
between public and private land is more than merely legal, but also suggests a pastoral
ideal of husbandry. The property owner, cultivating his land, will (and should) attempt to
provide the best environment for the wildlife that exists there. Like Adam in the Garden
of Eden, the property owner is seen as a caretaker, constituted as an owner through the
law, but the expectations regarding this role are shaped by an idyllic notion of the
husbandman who will gladly protect the creatures in his garden. In a sense, the good
shepherd, finding peace in a green landscape, is required by society's law to be
that this responsible for the creatures also existing in that landscape. If we recognize
of an environmental duty “good shepherd” is a “good citizen,” we see the emergence
here.
76 Similarly, yet on the other side of the debate, property rights activists assert legal claims about “property” that utilizes pastoralism to reinforce their position. In a speech presented before the Association of Consulting Foresters of America, Gerald Freeman, senior vice president of Stone Container Corporation, envisions a landscape reminiscent of its eighteenth century ancestor. He suggests that we understand
The principles such as the worthiness of humankind... the rights and the dignity of the individual... the propriety of the law... and the beauty and the uniqueness of our land, both its natural bounty, and the beauty of those rights which have ^ been bequeathed to us by the founding fathers.
Here, the cultivated garden that Robert Beverley pictured in his description of man's rightful place is invoked and entwined with the importance of ownership, to provide the twentieth-century hearer with a sense of the rightful place of human beings. Balancing the beauty of nature with the “propriety of law,” we sense the shape of a place where an individual lives to be both cultivated and cultivator. And what characteristics do
Freeman's cultivators possess?
The American Forest Council says the typical landowner is 62 years old, and has a college education; forty-three percent are white collar employees or self-employed professionals, thirty-five percent are retired, twenty percent are farmers and seventy-three percent live on or within 50 miles of their land. Most tree farmers want to provide a legacy for their heirs. This is a portrait of a worthy citizen. A portrait of a person who has adhered to
all the requirements society puts on the individual for the benefit of all.
But enormous problems have developed for these worthy citizens. It is becoming increasingly difficult - sometimes impossible - for southeastern 51 tree farmers to manage their land ...
Note what makes this citizen worthy: he is educated (through college) and has experience in a profession; he works in the same community where he lives; he provides for his heirs, thus enabling continuity between generations; and he knows how to manage his land. These citizens recall the ideal freehold farmer of the nineteenth century and are threatened by “strangers” possessing the ability to make cultivation, and thus the purpose
77 of ownership, increasingly difficult if not impossible. A forced return to the unstable wilderness seems to threaten these “worthy individuals,” who only want to provide for themselves and their heirs. Freeman contrasts this elegant vision with one much darker. and goes on to use language that has become famous in the western part of the United
States as a description of the intrusion by administrative agencies in the business of individuals. Freeman uses the metaphor of the backyard, and casts former Secretary of the Interior Bruce Babbit and administrative agencies involved in implementing environmental regulations as “strangers in our yards.” Among these strangers are
laws and regulations... Congress and federal courts and federal agencies.. .and they are proposals to create legislation for the likes of a national biological survey... They have the power and the authority to install blunt-nosed leopard lizards... and kangaroo rats...red-cockaded woodpeckers... as the largest property owners in the nation.
The rhetoric here is replete with both legal and green metaphors where various sorts of state actors violate private property that is demarcated by law. The metaphor of a backyard invaded by government harkens to the notion of a garden, a plot of land
destined for cultivation by its owner, and where what happens in the yard/garden is not normally subject to government control even though the garden exists through the law of
ownership. The vision Freeman hopes to invoke here is a peaceful, well-gardened yard,
where its fence is suddenly breeched by unknown individuals. Freeman clearly wants his listeners to understand that democratic principles are at stake here.
Freeman goes on to describe how these “strangers” are now working in the backyard, “installing” various creatures into the private space of worthy citizens, it
should be noted that all of these creatures have a certain reputation as pests, and are not at
all like the beautiful animals and plants that quite often are pictured in literature and
quality posters created by some environmentalists. The vision has taken on a nightmare
78 now, with not only uninvited strangers in the yard, but lizards, rats and noisy woodpeckers. The owner of this yard has lost control of it, and the wild has now taken over what was once cultivated and peaceful - all, at the behest of the government.
In an interesting variation on this theme, Bruce Yandle writes in the monograph
Land Rights :
Ranchers in the West and timber operators in the East and West are threatened by enforcement of the Endangered Species Act, which gives superior occupancy rights to designated species but pays landowners 2 nothing.
Here we see an argument by property rights proponents that through the ESA, wildlife is given "ownership” of the land 53 they occupy . While this is obviously a means of delegitamizing arguments made on behalf of wildlife protection, it also suggests how the environment, particularly those parts that are parcelled off and “owned,” is understood to exist apart from wilderness where humans would cease to be individuals and take on the characteristics of animals. Wildlife and humans take on the same legal personality in the
wilderness, and this makes it an absurd place, one unfit for human life. Property activists suggest that because of environmental protection, competition develops between wildlife
(a part of nature, and not a part of the “civilized world”) and humans for control over living space. Should the wildlife win, civilization will end.
Despite the obvious difference of opinion between the two sides of this debate, it
is clear that pastoral notions play a role in shaping understandings of what it means to own land and what responsibilities and rights inhere in that ownership. Some of the same metaphors appear to shape participants” perspectives though they reach quite different understandings of the situation, in part because of different political ideologies. At the heart of the pastoralism we see here is the idea that humans are not of nature, though they
79 may co-exist with it. The law. through property rights and regulations, provides achvists and policymakers with a framework for argutng about the rights and responsibilities of humans who are outside of nature. And, law that does not fix property relations but instead introduces the wilderness back into the human world, is not legitimate law and requires contestation.
Conclusions: Boundaries and Contest
Much ink has been spilled in this area of law, as scholars, activists, and policymakers grapple with understanding “takings” and their relationship to individual rights. This work tries to move beyond the theories ofjudges, scholars and lawyers to grapple with what ownership means to the property rights movement activists. Of particular importance in this chapter is the world that takes shape in these debates: a world full of the language of Founding Fathers, eighteenth and nineteenth century writers, and last but by no means least, twentieth century identity-ridden individuals.
Takings debates provide us with an example of how law, embedded in society and shaping its contours, can be the site of strenuous contest when members of a society disagree over where 55 a boundary should be set .
One of the critical issues that emerge in this analysis revolves around the location of the boundary between the state, in the form of administrative agencies, and the individual. Takings debates are largely about the degree to which the rights bearing individual of liberal theory remains shaped by property relations in our constitutional order, the degree to which administrative agencies can determine what those property
relations truly are, and whether it is appropriate for administrative agencies to make those
80 choices. It is not simply a matter of whether the administrative agencies are taking away real estate, but the degree to which they have been able to determine what rights ownership in real estate entails. Nor is it a matter of whether private property continues to exist in our society, but rather what its form is and should be. This suggests a contest over the appropriate way to govern. On the one hand, there is an economic rationality that is appealed to by property rights activists. They desire laws that will enable them to continue activities they find productive and useful to the creation of a stable and independent existence. the On other hand, advocates of greater environmental regulation utilize science to make arguments about the importance of protection of the earth in order to maintain human life. Population, here, is very important, and its control is a critical element in environmental discourse. It is this aspect of environmental regulation that is inveighed against so strongly by property rights activists.
The question of who decides what is appropriate behavior with regard to the world we live in is clearly a point of contest and related to the first issue of the appropriate relationship individuals have to their government. However, these matters also arise when the law begins to recognize the importance of creatures other than human
beings to our social order. It introduces something other than economic rationality, and this creates a contest over how we ought to make some of our most important decisions.
Yet these other creatures - the flora and fauna of nature — do not have the same status humans have as legal subjects in our law, so protecting them becomes difficult if the law
is driven by economic rationality which has as its foundation a rational, self-interested
56 their habitat has been likened to giving individual . For this reason, the drive to protect endangered species property rights, something no rational human being could think to do
81 smce only rat.onal beings are allowed to own things in our law. Underlying much of the property rights activists claims is the fear that humanity will end if such irrational behavior is promoted by the government. Interestingly enough, one can imagine environmentalists making a similar claim.
For interesting discussions of the property rights movements, see Harvey M. Jacobs (ed.), Who Owns America? Social Conflict Over Property Rights (Madison: University of Wisconsin Press, 1998) and David Helvarg, The War Against The Greens: The Wise Use Movement, The New Right, and Anti-Environmental Violence (San Francisco: Sierra Club Books, 1994).
2 ~ This distinction in ways of thinking of property is partly drawn from Gregory Alexander, Commodity and Propriety: Competing Visions ofProperty in American Legal Thought, 1 776-1970 (Chicago: The University of Chicago Press, 1997) and C. M. Rose, Property and Persuasion: Essays on the History, Theory and Rhetoric of Ownership (Boulder: Westview Press, 1994).
The Takings Clause is found in the Fifth Amendment of the American Constitution and reads, “Nor shall private property be taken for public use, without just compensation.”
4 The spotted owl debate originated in the late 1980s when timber and lumber industry officials joined forces with local residents (most of whom worked in the forest industry) to dispute regulations promulgated by the Fish and Wildlife Service restricting timber removal in the spotted owl's habitat.
5 16 USCS §§ 1531-1543.
6 v. Babbitt Sweet Home Chapter of Communities for a Great Oregon , (515 U.S. 687, 1995).
7 Pierre Bourdieu, Language and Symbolic Power, trans. Gino Raymond and Matthew Adamson, ed. John B. Thompson (Cambridge: Harvard University' Press, 1991).
8 Such authors include Alan Hunt, Explorations in Law and Society: Toward a Constitutive Theory ofLaw (New York: Routledge Press, 1993); Karl Klare, “Law Making as Praxis,” 40 Telos 40, (1979): 123; and E. P. Thompson, Whigs and Hunters: The Origin of the Black Act (New York: Pantheon Books, 1975).
9 John Brigham, The Constitution ofInterests: Beyond the Politics ofRights (New York: New York University Press, 1996); Helena Silverstein, Unleashing Rights: Law, Meaning, and the Animal Rights Movement (Ann Arbor: The University of Michigan
82 1
Press 1 996); Michael McCann, Rights a, Work: pay Equity and the Politics of' Legal Mobilization (Chicago: The University of Chicago Press, 1 994).
° Jolm Bnghan, and Diana Gordon, “Law in 1 Politics: Straggles Over Property and Public Space on New York City s Lower East Side," Law and Social Inquiry 21. no. 2 (1996)- 264. v
1 Brigham and Gordon, "Law in Politics," pp. 266-267.
Henry Nash Smith, The Virgin Land: The American West as Symbol and Myth (Cambridge: Harvard University Press, 1950), p. 127.
Smith, The Virgin Land, pp. 123-139.
For a somewhat dated but still insightful discussion of this relationship, see Arthur S. Miller, The Supreme Court and American Capitalism (New York: Free Press, 1968). L The development of this status is very interesting, and is described in Peter D’Errico. “Corporate Personality and Human Commodification,” Rethinking Marxism 9 (1997): 99-
16 See Rogers Smith, Civic Ideals : Conflicting Visions of Citizenship in U.S. History (New Haven: Yale University Press, 1997) for a discussion of the reasons for moving away from studying economic liberties and property relations; in contrast, see Howard Gillman “Reconnecting the Modem Court to the Historical Evolution of Capitalism,” in The Supreme Court in American Politics: New Institutionalist Perspectives, ed. Howard Gillman and Cornell Clayton, (Lawrence: University Press of Kansas, 1999). Gillman explains why we should turn our attention once again to this important relationship.
Having some sympathy for Professor Smith's argument, I am also struck by the way in which it leaves out the important intersection of race and class.
17 th Richard Posner, Economic Analysis ofLaw, 5 edition (New York: Aspen Law and Business, 1998).
Not only are these consequences that will shape the regulation of private property, but factions of ecoterrorists and reactionaries have committed acts of violence against one another. For a description of violence against environmentalists, see Helvarg, The War Against the Greens. On the other side of the dispute, ecoterrorists have also used violence. One of the more prevalent forms of ecoterrorism is driving ceramic or metal spikes into trees in order to inhibit logging operations. The spikes are generally not detected by loggers until it is too late, and often cause serious injuries and sometimes death.
19 Eve Darian-Smith, Bridging Divides: The Channel Tunnel and English Legal Identity in the New Europe (Berkeley: University of California Press, 1999) p.14. ,
83 David. Engel, ‘‘Law in the Domains of Everyday Life: The Construction of Community and Difference, in eds. Austin Sarat and Thomas M. Kearns, Law in Everyday Life (Ann Arbor: University of Michigan Press), pp. 123-70 cited in Darian-Smith, Bridging Divides , p. 13.
Darian-Smith, Bridging Divides p. N. , 13; Blomley, Law, Space and the Geographies ofPower (New York: Guilford Press, 1994), pp. 43-44.
22 Michel Foucault, “Govemmentality” in eds. Graham Burchell, Colin Gordon and Peter Miller, The Foucault Effect. Studies in Govemmentality (Chicago: The University of Chicago Press, 1991), p. 92.
" 3 Kirstie McClure, “Taking Liberties in Foucault's Triangle: Sovereignty, Discipline, Govemmentality and the Subject of Rights,” in eds. Austin Sarat and Thomas R. Kearns. Identities, Politics and Rights (Ann Arbor: University of Michigan Press, 1995), pp.150- 152.
Michel Foucault, “Two Lectures,’ in Power/Knowledge: Selected Interviews and Other
Writings 1972-1977, ed. Colin Gordon (New York: Pantheon Books, 1980), p. 108, cited in McClure, "Taking Liberties in Foucault," p. 1 50.
25 ' For a discussion of this perspective, see the essays in an edited volume by Bruce Yandle entitled Land Rights: The 1990s Property Rights Rebellion (Lanham: Rowman and Littlefield, 1995).
26 Leo Marx, The Machine in the Garden: Technology and the Pastoral Ideal in America, (New York and London: Oxford University Press, 1964), pp.1-5.
“ Marx, The Machine in the Garden, p. 5.
Marx, The Machine in the Garden, p. 10.
29 Smith, Virgin Land.
30 Smith, Virgin Land, p. 125.
Smith, Virgin Land, p. 128.
32 Ibid.
Smith, Virgin Land, p. 170.
34 Marx's analysis ends in the 1960s, which is when the book was written. However, his insights remain very applicable in contemporary America.
35 Marx, The Machine in the Garden, p. 10.
84 “Marx contends that the second form of pastoralism, alluded to earlier also pervades* the literary canon. Through a careful analysis he explores the relationship between 'Wh P°PU 31 CU argument has P2™11 ^ “d seems, at times, echoed MichaelMidTeff: T' by Kammen s recent book, American Culture, American Tastes ; Social Change and the Twentieth Century (New York: Alfred A. Knopf, 1999).
37 Marx, The Machine in the Garden, pp. 75-85.
Though Marx does not explore the connection at great length, its striking ecofemimst parallel to discussions of the domination of race, class, gender and nature as related phenomenon is worth noting. See Noel Sturgeon, Ecofeminist Natures: Race Gender Feminist Theory , and Political Action (New York: Routledge, 1 997) and Valerie Plumwood, Feminism and the Mastery ofNature (London md New York: Routledge Press, 1993) for discussions of the relationship between these four modes of social domination.
39 Patrick Fitzpatrick, The Mythology ofModern Law, (London and New York- Routledge ' 5 Press, 1992), pp. 81-82.
40 Fitzpatrick, The Mythology ofModern Law, pp. 82-83,
41 Sweet Home supported this position by pointing out that the original definition of “take” appearing in earlier drafts of the ESA explicitly included “destruction, modification, or curtailment of habitat or range’ but was struck from the bill before its enactment. They also noted that Section 5 of the Act expressly authorizes the government to buy land as a means of checking habitat modification. They argued that this was the only explicit check against habitat modification granted by the Congress. Finally, they contended that the term “harm” was added in a floor amendment without debate, and therefore Congressional intent as to the meaning of “harm” was unclear. Thus, they maintained, it should not be interpreted broadly.
42 The distinction between threatened and endangered species is significant because the language of section 9 appears to apply only “with respect to any endangered species of fish or wildlife” (16 USCS § 1538(a)(1)). According to Kenneth Plante and Andrew J. Baum, the Department of Interior broadened the application of Section 9 to include “ threatened species. Plante and Baum, Babbit v. Sweet Home Chapter ofCommunitiesfor a Great Oregon : Preserving the 'Critical Link' Between Habitat Modification and the “Taking” of an Endangered Species,” Nova Law Review 20 (1996): 747. See also 50 CFR § 17.31-48, 1994.
4j 1 10 Congressional Record H30.162 (1973).
44 One reason many commentators gave for believing the ESA to be the strongest form of environmental protection in American law was that it uniquely combined criminal and civil penalties to enforce its provisions. The ESA requires only a showing of general intent, so that harm does not have to be the goal of a taking of species, but rather only the factual result. Thus, criminal prosecution may be successful if it can be shown that a
85 defendant knowingly took an animal he or she knew to be listed under the Act and not have a did perm.t from the DOI to do so. “ See Roger W. Findley and Darnel A °" E"v menta! Lm (Minneapolis: West Publishing Company foost1995) forf amplification.Tr ™Z p y ’ 50 CFR § 1531-1543.
Th C°urt rea^°ned that the breadth of the language ofthe , f statute was suggestive of a broad understanding of the word “harm.” Given this, any habitat modification resulting in actual injury or .he death of members of an endangered species would come under the statutory language. Further, the broad purpose ofthe ESA, as fotmd in the Congressional Record also supported the Secretary's interpretation ofthe statute. Finally, since Congress enacted amendments in 1982 to allow for the issuance of permits for “taking” species, the Court argued that Congress clearly understood “taking” to be broadly defined.
46 The ESA was up for reauthorization in 1991 . However, as of April 2002. reauthorization has yet to occur though the act was amended in 1 996 and 2000 At Hast part ofthe reason for this is the strength ofthe lobby on behalf of property^ owners and court cases involving vanous aspects of the "critical habitats" designation for protecting& wildlife. In the meantime, there have been bills proposed before Congress that would increase access to the courts for private property owners claiming civil rights violations under the Fifth and Fourth Amendments. These bills have been directly linked to the property rights movements and environmental laws during Senate and House hearings Bills revitalizing the while ESA providing greater property rights protection have also been proposed. As yet, none of these various bills have made it out of committee, despite support in both the House of Representatives and the Senate.
47 Gunter Booth, “Contract Draws Fire; Environmental Issues at Stake” (February 11. 1995) The Tampa Tribune, February 11, 1995, Nation/World Section, p. 1.
48 Paul Rauber “An End to Evolution: The Extinction Lobby in Congress is Now Dealing Which Species Will Live and Which Will Die. Endangered Species Act Reinterpretation,” Sierra , 81, no. 1 (January 1996): 28.
49 B. Holmes, “There’s an Endangered Species on My Land! Private Landowners as
Custodians of Endangered Species,” National Wildlife 33, no. 4 (June 1995): 8.
50 Speech delivered June 20, 1994. Transcript found in Vital Speeches 60, no. 21 (1994): 659.
2 Yandle, Land Rights, p. 331.
53 Occupancy has long been a part of property rights through common law. Occupants were viewed as having qualified ownership of the land they occupied as well as anything on the land, in the air above or the earth below. See Blackstone's Commentaries, vol. 3.
(New York: Oceana Press, 1967), p. 409 for further elaboration.
86 Caro Rose has described the situation in takings law as a “muddle” that began with Pennsylvania Coal Company v. Mahon (260 U.S. 393, 1922). See her article "Mahon Reconstructed: Why the Takings Issue is Still a Muddle,” Southern California Law Review 57 (1984): 561.
This understanding of law and society views law as an “arena of struggle” where law ftmctions both as a mediator of struggle but also inhibits certain types of behavior. One of the most important examples of this position is found in E. P. Thompson Whigs and Hunters 5 6 , p. 242.
This may be somewhat inaccurate. Silverstein argues in Unleashing Rights that animals emerge as legal subjects through the litigative process that resulted from animal rights activism. While I think Professor Silverstein is accurate in her assessment with regard to the issue area she is writing about, it seems that animals are only partially constituted as legal subjects in law as their status does not seem to extend beyond a very limited sphere. With regard to endangered species, flora also have to be considered. Christopher Stone explored these issues in his seminal work, Should Trees Have Standing? Toward Legal Rights for Natural Objects (Los Altos: Walter Kauffman, 1974).
87 CHAPTER 4
PICKING RIGHT JUDGES *
Introduction
In this chapter, the notion of “legal expertise” in law forms the backdrop for
understand, conservative ng legal activism's relationship to the judicial selection process.
The “cult of the judge,” as John Brigham has explained, is closely linked to the
importance of integrity and learning as qualities required ofjustices of the U.S. Supreme
1 Court. These qualities, all tied to the notion of life tenure, were emphasized early on by Alexander Hamilton in Federalist 78. In today’s federal judicial selection process, the
ways in which they drive the politics around the nomination and confirmation process is
key to understanding how and why today's conservative legal activists attempt to position
the Federalist Society as a conservative equivalent and a more legitimate judge in
determining the level ot qualification among judges and lawyers more generally than (lie
American Bar Association (ABA). In particular, we see the Federalist Society
contending with the ABA’s Standing Committee on Judiciary for the position it has held
in screening nominees since the Eisenhower administration injudicial selection.
However, these two organizations are not the only ones attempting to influence the selection process. Other groups, on both sides of the political spectrum, work in this arena. For our purposes, one of the more interesting is the Free Congress Foundation
(FCF). By using the FCF as a foil to the Federalist Society, we can see why claims on behalf of the Federalist Society to a special position in the selection process and the legal profession more generally are compelling. Through an analysis of the way the ABA,
Federalist Society and the FCF situate themselves, I argue that neither the ABA nor the
88 Federal Society is situated as an interest group in the way that the FCF is. Rather, both organizations make claims concerning professionalism and their ability to judge “good- law that is related to their positions within the process of train, ng and policing the legal
profession. This differs from the FCF in that tins latter organization explicitly seeks to
advance conservative political and social values, not professionalism among lawyers and judges. The Federalist Society makes conservative legal theory a part of their
understand, ng of that professionalism. By focusing our attention on the arguments
presented in the debate over the ABA's role in the selection process from the period of
the announcement that the Bush Administration would no longer provide the ABA with a
list of names of nominees for its evaluation (March 22, 2001 ) to Senator Jcfford's
defection from the Republican party in mid-May (2001 ), we gain a clearer understanding
of the way both organizations are linked to the state, and the way in which those links are
shaped by notions of expertise inherent 2 in liberal legality. For the ABA and Federalist
Society, their politics are the politics oflaw, then, as well as political partisanship; and, in order to be both, they are cloaked in the seemingly neutral language of expertise.
Whatever the hopes of conservatives for a less subjective, less politicized judiciary, in this activity as elsewhere we see conservative legal activists showing their acute perception of the realities American law: without “right judges,” their agenda will not become reality.
Judicial Selection and the Desire for Riuht Juduing
Conservative legal activists place a strong emphasis on the importance of having judges who will decide cases according to principles they deem to be sound.
89 Conservative legal activists have utilized the selection process in attempts to create a judiciary dominated by a particular ideology. However, the point here is not merely to describe a highly politicized selection process in which groups such as the Federalist
Society and the FCF work to advance their interests. Rather, by focusing attention on why the Federalist Society or the FCF are not able to step into the role the ABA has had in the selection process for half a century, we will be able to discern the way the selection process becomes a space in which competition among lawyers constitutes legal
3 ideology. The picture that arises in this investigation suggests the heavy importance placed on standards of 4 professionalism and constraint through theories of interpretation.
Yet, with this analysis the highly ironic nature of conservative legal activism also comes into focus: while declaiming a highly politicized judiciary, conservatives have also simultaneously worked to funnel cases into an increasingly conservative judiciary in the
5 hopes of creating legal change. Thus, as they succeeded in staffing the judiciary in the
1980’s with more conservative judges, they also were able to more effectively utilize strategies long associated with public interest law and the very politicization they decry.
It’s very difficult to know precisely what criteria an organization such as the
Federalist Society would employ in judging potential judges. However, we can speculate. In discussing conservative judges and interpretation, originalism generally dominates the discussion. Another school of thought important in discussions of
statutory interpretation, “textualism,” is also very influential in these conversations, particularly when we pay attention to distinctions among traditional conservatives and
6 right libertarians. The latter have argued that textualism should be the preferred theory of interpretation, suggesting that the intention of the Founding Fathers is of less
90 importance when judges interpret the law than working with the language of the text.
Whether intentionalist or textualist, however, the hope is that these theories will constrain judges from subjective interpretation, which in turn will keep law from politicization.
Conservative jurisprudes thus hope to maintain a strict distinction between law and politics. Moreover, such interpretive practices are widely understood to be a means of
limiting government, particularly when applied to statutory interpretation and regulatory
issues. The question among conservatives is which, the better job in constraining
decisions from subjectivity and thereby leading to a more fundamentally sound
interpretations of law. However, “constraint in this context does not translate to
“restraint.’ Rather, advocates of these theories hope they will lead to what they see as a
more fundamentally sound interpretation of the Constitution.
Conservatives and right libertarians both look to judges to strike down laws and overturn precedents that have, as they see it, stretched the possible meanings of the
Constitution too far or even brought concepts into the law that cannot be there if the
language of the Constitution is consulted. An example of this is privacy as it has been
construed in constitutional jurisprudence. As one conservative law scholar pointed out at
a recent meeting of the Federalist Society, the word “privacy” is not mentioned in the
Constitution, and either an intentionalist or a textualist reading of the document will
result in an understanding which would preclude the contemporary understanding of
7
privacy . In this sense, their strategies rely upon having judges who would not be
restraintists, but instead activists. These judges would both maintain correct interpretive
practices and be willing to be activists in striking down statutes or regulatory
interpretations of those statutes. So, when speaking of competency among judges, this is
91 often the cntenon underlying the position particularly within the Federalist Society, but also of the Free Congress Foundation.
The FCF has been involved with the selection process since the 1980’s. A conservative think tank located in Washington D.C., it explicitly describes itself as both politically and socially conservative. Headed by Paul Weyrich and John Nowacki, within its structure are several centers focused upon particular areas of policy. One of these is the Judicial Selection Monitoring Project (JSMP), headed by Thomas Jipping. He and his colleagues “evaluate^ judicial nominees on the basis of their judicial philosophy, through review of past 8 judicial decisions, legal writings, speeches and so on.” They are particularly concerned with placing “restraintists” on the bench, defined as judges who
9 “take law as they find it, leaving changes to the legislatures or the people.” To enable their work, the JSMP has put together the “Coalition for Judicial Restraint,” which they
claim is made up of over seven hundred grassroots and media organizations. Through its
publications, email lists and various other mechanisms, the JSMP seeks to inform its members, the media and Senate staffers as well as “all interested individuals” of events in the selection process.
This activity differs markedly from the ABA’s Standing Committee, which rates potential judges as “well qualified,” “qualified” or “not qualified” based upon interviews with a cross-section of lawyers and judges in the nominee's state as well as a review of the past record of the nominee. Unlike the FCF, which worked diligently to ensure that
President Reagan would nominate Judge Bork, the ABA committee does not present
10 names to the President at this point in time. As scholars have pointed out, the ABA has
given its highest ratings to judges with a variety of political orientations and whom
92 1
various presidents have 1 nominated . Therefore, a particular theory of interpretation underlying the ABA’s analysis is difficult to discern. It is clear, however, that the legitimacy of the legal profession and the legal process is critical to their goals. Indeed, the ABA’s Standing Committee asserts again and again that they do not include the political views of a particular candidate in their evaluation. Rather, integrity, judicial temperament and professional competence are 12 their criteria . The work of the Standing
Committee is separate from the rest of the ABA, though the committee members are all drawn from the organization's membership. Their claim to be legitimate in this role is that since they represent all segments of the legal profession, they are in the best position to provide an objective evaluation of potential 13 nominees . This last claim is significant since it has been clear since its inception that the Federalist Society cannot claim to represent the entire profession. Indeed, it explicitly claims to represent a small segment of lawyers who have been underrepresented. And the FCF does not claim to represent legal professionals at all, but rather to advance political and social conservatism.
However, this is not to say that in advancing professionalism the ABA is not advancing political goals. Such an analysis would not interrogate the degree to which they work to maintain what has been referred to as an “ideology of expertise.” The importance of the expert in the modem state has been under investigation by various
14 scholars . Of interest here is the particular claims to expertise made by the legal profession when claiming to be the best police of itself. This is a political position that maintains a particular status quo in which lawyers are maintained as key state actors through mechanisms such as judicial selection and through institutions such as the ABA.
Therefore, their objectivity is not quite what it appears to be. Rather, it is shaped by the
93 beliefs in and ideas about the appropriate role of the legal profession and the awareness that judging is an important element in maintaining their legitimacy. This was apparent in chapter one s discussion of the conservative legal movement in the nineteenth century, as well as the rhetoric ot the ABA during the controversy investigated here.
Very shortly after the Bush administration’s announcement, we heard rumors in the press that the Federalist Society would play a major role in the Bush Administration, particularly in choosing judges for the federal judiciary. For the first time since it’s founding in 1982, the Federalist Society was receiving a great deal of attention in the press. This group took shape in elite legal institutions and was borne out of concern among conservative legalists that their voices had no space in the legal academy. Its connections to state power were subtle and difficult to perceive up until the Bush
Administration took office, though many watcher of the professions have been aware of their presence both within the legal academy and within the executive branch. However, for the press and the public, the Federalist Society seemed to “appear” on the political scene, though many conservative lawyers and judges are members of the organization, as
have been many advisors of the last three Republican presidents. Thus, through its members, the organization has been present in two other administrations - both Reagan’s
and Bush Sr.’s, but it has not been highly visible publicly.
One can, however, make the same statements about the ABA’s membership (and, membership in one organization does not preclude membership in the other). It is a professional organization in the sense that legal professionals opt to join because there are certain benefits. Not least of which is the ability to circulate among and connect with the very powerful in the hopes of enabling better employment, clerkships, etc. Yet, the
94 two organizations seem different. While in a later chapter a comparison of the Federalist
Society and the Law and Economics Movement within the legal academy will suggest some of the ways we can understand their roles as safe havens for conservative academics, here the focus needs to be on the role the Federalist Society can play within the legal profession and creation of legal standards more generally. Can they operate as a mechanism for ensuring professionalism and is this really their goal? The question of why either the ABA or the Federalist Society can claim a privileged position in the judicial selection process frames the following discussion.
To enable the fleshing out of their roles within the structure of the profession and its links to state power, we can consider the FCF as a foil to the Federalist Society. Like
this latter organization, the is FCF deeply conservative in the politics it seeks to advance.
It has, unlike the Federalist Society, been involved with the judicial selection process for well over a decade, performing its own screening process and networking among other conservatives with the explicit goal of affecting the selection process. Yet, also unlike the Federalist Society, no one wonders whether the FCF can play the role of police or
1 quality control expert to the legal profession. ' Why is the Federalist Society accorded a
different position than the FCF? Clearly, it is not simply their conservatism or the FCF
would be a contender in this debate given its organizational structure and lobbying expertise. Rather, the key element seems to be the legitimacy of the claim to a particular
form of legal expertise that the ABA and the Federalists are able to make more
persuasively than the FCF. This claim is backed-up by the Federalist Society's place within the legal academy, just as the ABA’s longstanding role in maintaining the
95 profession reinforces its position. And, interestingly enough, the ABA seems to be the
most persuasive of all.
A Closer Hook at thp ar^
Many conservatives, after the Bush Administration’s announcement and after a
lot of heated discussion and replies from the ABA, argued that the ABA is “just another
interest group.” John Nowacki, of the Free Congress Foundation provided an excellent
example of this position in a commentary sent out on the FCF email list. He stated.
Like other interest groups that evaluate nominees, [the ABA] would leant of a nomination when the President announced it, and then research and comment on e nomination in the time between the announcement and the Senate hearing It was the right decision [referring to the Bush Administration]; the ABA takes so many political positions despite its “nonpartisan” status that it has no business olding some 16 semi-official veto over the nomination process .”
However, other interest groups are not and have never been accorded the status of the
ABA in this particular process. The question that this raises, then, is why is it that other interest groups have not held this position if the ABA is truly equivalent to them and how did the ABA manage to situate itself in such an enviable place? Finally, what does it meant to be just another interest } group To this last question there appears a hint in
Nowacki’s discussion: they take too many political issues to be non-partisan. Indeed, the
Federalist Society has suggested that taking positions on social positions is what makes
7 the an .' ABA “interest group” like any other But, note too that Nowacki and, as will be discussed later, the Federalist Society, never seem to address the claim the ABA makes concerning the insularity of the Standing Committee from the rest or the organization.
Before addressing this, a closer look at the ABA and the process through which it became
so important in the institutional practices of judicial selection is in order.
96 The ABA was founded in 1878 largely as a reaction to the decision in Mum v.
Wmois, a case upholding restrictions on private property and that is often discussed as a judicial tragedy by property rights 18 advocates. At its inception part of a professionalization process that was developed during the second half of the nineteenth century. There has been much discussion of the importance of professionalization in the sociology literature in particular, where it has been described as a means by which lawyers worked to construct a market for their skills, increased their value in the eyes of the American public, and gave the legal profession a veneer of respectability that had often been lacking in previous 19 periods. This was in the same period that the U.S. was going through a very rapid industrialization process and the administrative state in the
U.S. was developing in part as a response to the social and class issues that became apparent during this process. Both are important parts of the story of professionalization.
And, processes threatened the type of liberalism that was the bedrock of the legal institutions in that period.
The ABA's connection to liberalism is important to note here. Sociologists
Terrence Halliday and Lucien Karpik, through comparative analysis in several countries, have described lawyers as tending to become more politically active in eras when their positions are threatened. Usually, Halliday and Karpik argue, lawyers become politically active in order to advocate a particular form of liberalism, one in which the
moderate state is predominant. Michael Powell similarly notes that what motivated the
lawyers at the end of the nineteenth century was the breakdown of the liberal order “as manifested in the embarrassing lack of uniformity in the law and of impartiality in its
22 applications.” These lawyers, Powell argues, saw their cause as “the restoration of the
97 liberal legal ideal in which the boundaries of private and public were clearly demarcated, individual rights well-defined and certain, 23 and procedures regular and consistent.”
They advocated the scientific reform of the legal system, believing that it would provide them with the ability to predict outcomes and the capability to pursue their’s and their
24 clients interests more effectively.
The ABA has undergone amazing changes since its founding. Today’s ABA has a membership role counting 400,000 individuals. Its general goals are, according to its literature, to be the national representative of the legal profession, serving the public and the profession by 25 promoting justice, professional excellence and respect for the law.”
Its more specific policy goals are enumerated in their literature:
The 1 goals of the 1 association are: (1) to promote improvement in the American system ofjustice; (2) to promote meaningful access to legal representation and the American system of to justice for all persons regardless of their economic or social condition; (3) to provide ongoing leadership in improving the law to serve the changing needs of society; (4) to increase public understanding of and respect for the law, the legal process and the role of the legal profession; (5) to achieve the highest standards of professionalism, competence, and ethical conduct; (6) to serve as the national representative of the legal profession; (7) to provide benefits, programs and services which promote professional growth and enhance the
quality of life of the members; (8) to advance the rule of law in the world; (9) to promote full and equal participation in the legal profession by minorities and women; (10) to preserve and enhance the ideals of the legal profession as a
common calling and its dedication to public service; and (1 1) to preserve the independence of the legal profession and the judiciary as fundamental to a free 26 society.
The ABA’s role injudicial selection is part of a discourse of professionalization
that is institutionalized in the U.S. President Eisenhower brought the ABA into the process in part to ensure the professional standards of his judicial nominees. Since
Eisenhower’s presidency, the ABA has been a part of the vetting process of nominees, providing through their Standing Committee on Judiciary an evaluation of the President’s potential nominees. According to David Yalof, this was at least in part because
98 Eisenhower was concerned with the professional standards of his judicial nominees.
Since the ABA was the premiere professional organization, it was the obvious choice.
However, it should be noted that the ABA was involved in the selection process prior to this, working with the Senate Judiciary Committee in an advisory role and, in its last month, the Truman Administration had also agreed to the ABA's participation in the process.
As Joel Grossman points out, the ABA had a traditional role in the selection process prior to the Eisenhower presidency that was clearly tied to their goal of
"promoting ... the administration 28 of justice.” Since 1908, their interest in judicial selection was clearly articulated as a duty of the profession. Political considerations, the
ABA said, should not outweigh the judicial fitness’ ofjudges. Fairness and impartiality were key characteristics of a qualified judge, though it is important to note that politics were not completely left out of the picture. Rather, “political considerations” were
29 simply not to overshadow the issues of other qualifications.
The formation of the Standing Committee was a later development, and was partly a response to controversies arising from decisions of the U.S. Supreme Court and the conduct of its justices. The Standing Committee was formed in 1946 and was specifically designed to enable the professionals of the ABA to police their profession.
Without going too far into a description of the workings of the Standing Committee, what
I want to note here is the way in which this interest group became a part of a key process
in our government, and the practice of requesting its evaluation became an institutional practice.
99 The Standing Committee developed good relations with the Senate Judiciary
Committee after its creation. Grossman points out that the Standing Committee was invited into the selection process in 1947 after Republicans took control of both Houses for the first time since 1930. Leaders in the party announced that they desired to “stem
31 the tide of leftist judges.” They turned to the legal profession, particularly the ABA and state bar associations for information on the nominees’ “character, legal ability, temperament, and the political philosophy.”^ Grossman suggests that the ABA would not have been invited in had th Democrats remained in control of the 80 Congress; and, that their participation was enabled in part by the long control of Congress by the
Democrats coinciding with a long line of judicial appointments made by Democratic presidents. The combination of these along with the ABA’s political positions concerning the legal profession and criticism of the Supreme Court shaped an environment conducive to bring this group into the selection process.
At this point, the Standing Committee did not simply rate the nominees but was also actively concerned in making suggestions for federal judges. This changed when
Eisenhower urged the Justice Department to seek the ABA’s approval of his nominees.
David Yalof explains this as a means of “quality control” on the part of the Eisenhower administration, and Eisenhower promised the ABA that he would not make any
IT appointments without their “enthusiastic support.” In exchange for becoming such a
significant actor in the process, the ABA agreed to cease suggesting names for seats on the bench and would restrict their activity to rating those potential nominees the administration was considering. Thus, the ABA’s Standing Committee was
100 institutionalized through a process that included the highly political concern of having
judges who would maintain the legitimacy of both the profession and legal institutions.
When the Bush Administration decided that the ABA should no longer participate
in this fashion, it essentially attempted to remove them from this institutional position.
And it did it in the name of promoting the rule of law and maintenance of a good society.
1 hese are the same reasons the ABA was originally invited in. Ironically, conservative
Republicans concerned with “leftist” judges institutionalized the ABA to advance their
political goals; and conservative Republicans worried about “leftist” judges attempted to
delegitimize them fifty years later. Even more importantly, whether there really was an
attempt to move the Federalist Society into the position of the Standing Committee, that
key figures in Washington even considered doing so suggests that an organization within
the legal academy which had little attention paid to it for quite a long time, could
potentially become an important element in shaping law. However, this did not occur,
and the reasons it did not occur are important for understanding the way institutional
practices shape what is ultimately possible politically.
The Politics of Depoliticization: Enter the Federalist Society
According to Laura Kalman, the Federalist Society was started in the late 1970’s
as a direct response to what conservatives felt was an overly liberal legal academy.
Professor Richard Posner had pointedly commented that conservatives did not have a
space in the legal academy where they could meet and discuss ideas. By 1982, the first chapters took shape at Yale Law School and the University of Chicago School of Law.
Steven Calabresi, the nephew of Judge Guido Calabresi, David McIntosh, and Lee
101 Liberman Otis, all of whom had been friends as undergraduates at Yale, formed the nascent organization after learning that they were among a minority of conservatives at the law schools at Yale and the University 34 of Chicago. Shortly after the founding of these two chapters, the Harvard Law School chapter was organized, and Spencer
Abraham began the Harvard Journal of Law and Public Policy. According to these founders, the goal of the organization was to provide a space for conservative law students to come together and express their views and support one another in what they felt was a liberal legal academy. In this account, the need for a more balanced dialogue is always highlighted. Recently, Vice President Cheney reiterated this position in his opening remarks to the National Convention of the Federalist Society in Washington
D.C. Cheney said,
The Federalist Society was formed to bring balance to the debate in our law- schools and in the legal profession. You were founded in the conviction that the
state exists to preserve freedom - that the separation of powers is essential to the operation of our government - and that judges are charged with interpreting the 36 law, not inventing it.
At the time of its earliest meeting, the idea that this organization would develop
into a nationwide network of conservative lawyers appears to have been remote to its founders. That would soon change. The Institute for Educational Affairs funded their
first national conference, held in 1987 (at that time the Institute was headed by neo- conservatives Irving Kristol and William Simon). Speakers at the conference included
Laurence Tribe and Justice Antonin Scalia, who during his time at the University of
Chicago Law School also served as faculty adviser to that chapter. The society has grown and continues to attract the leading lights of the conservative legal movement as well as within the current President Bush’s administration. It is co-chaired by Robert
Bork and Senator Orrin Hatch, and current or past members of the organization include
102 Spencer Abraham (Secretary of Energy), Gale Norton (Secretary of the Interior),
Attorney General John Ashcroft and Solicitor General Theodore Olson. In addition, five out of eleven lawyers in the White House Counsel's Office are either members or active participants in the Federalist Society’s 37 activities .
The Federalist Society holds two national conferences each year - one for lawyers and faculty and one for students. In addition, members may join “practice groups” in various areas of law. What is of greater interest here, however, is the Federalist Society’s
ABA Watch program. This project aims to detail any ABA activities it deems to be “too political” for an organization attempting to police the bar. Clearly blaming the ABA as well as other bar organizations for the politicization of the judiciary, the Federalists appear to be policing the police with this project. Despite what the press has said, it is not at all clear that the ultimate goal in this is to supplant the ABA in the judicial selection process. Indeed, Steve Calabresi has said that they would not screen candidates even if asked by the administration; however, they do not believe the ABA should be
doing so either. In a Chicago Sun-Times article, Calabresi argued that “It is [the ABA’s]
right to take stands, but once it does that, it is no longer a neutral professional
38 organization that can be given a preferential role in the judicial selection process .”
Utilizing this measure, it would appear that the Federalist Society would also be unable to function in such a role.
The general goal of the Federalist Society is rather different than what we have seen maintained by the ABA. According to their literature, the Federalist Society has a very political (as opposed to professional) agenda:
Law schools and the legal profession are currently strongly dominated by a form of orthodox liberal ideology which advocates a centralized and uniform society.
103 mile some members of the academic community have dissented from these views b> and large they are taught simultaneously with (and indeed as if they were) the law. The Federalist Society for Law and Public Policy Studies is a group of conservatives and libertarians interested in the current state of the legal or er. It is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not w at it should be. The Society seeks both to promote an awareness of these principles and to further their application through its activities. This entails reordering priorities within the legal system to place a premium on individual liberty, traditional values, and the rule of law. It also requires restoring the recognition of the importance of these norms among lawyers, judges, and law professors. In working to achieve these goals, the Society has created a conservative intellectual network that extends to all levels of the legal community.
Ultimately, this suggests a political goal of returning to a mechanical or formalistic jurisprudence. However, within the Federalist Society there is considerable disagreement with regard to what this would look like, with debate occurring principally between originalists and textualists. Vehement disagreements break out over the appropriate way to read the Constitution as well as interpret statutory law, with originalists prepared to consider the historical writing, debates, speeches and the Congressional Record, while textualists would consider only the language of the Constitution or the statute. These disputes are discussed in further detail in the next chapter. However, the main point here is that the Federalists are fairly explicit with regard to the political nature of their work.
That they hope it will yield a rule of law that seems devoid of politics is important. It is, in James Foster’s terms, a politics of apolitics. This goal seems to contrast with the
current system as they see it and with many standard understandings of the nature of law
as highly political. But also, and quite importantly, it suggests that the political and legal would be completely distinct spheres in the world they envision. That latter move is one
which it seems to share with the American Bar Association and is a feature of a liberal
104 legal ideology in general. This suggests a closer family relationship than the Federalist
Society, at least, would like to recognize.
Il^AMahe^iesidenT and the Federalist Society
As described in chapter 1, the adoption of certain strategies among conservative
and right libertarian public interest lawyers is at least partly explained by changes in the judiciary that began with President Reagan’s judicial appointments. In the early seventies those activists faced the challenge of how to operate in an environment in which most of the judges were considered “liberal” or “activist” and not sympathetic to their political goals. This led to the well-documented strategy of filing amicus briefs and working to resist findings in environmental 41 impact statements. Both strategies were
fairly passive and resulted in very little legal change in the realms in which these activists woiked. \ et, their activity was an important element in environmental policymaking in the western part of the U.S. and provided them with the beginnings of a movement that only awaited changes in staffing within the judiciary to truly bloom. Their momentum grew through the 1970's, and with the election of President Ronald Reagan, the opportunity to advance their strategies came as he staffed the judiciary with conservative jurists. It is not surprising that commentators noted the increase in conservative legal
4- activism during the 1 980’s. With the increase in activism, came a broadening of the strategies available to conservatives, including the importance of community
43 mobilization and case sponsorship to their work.
During the years of President Clinton’s administration, their focus on the judicial selection process did not wane. Indeed, conservative groups such as the Free Congress
Foundation, worked diligently to ensure that Clinton’s appointments were not too
105 liberal. We heard discussions of the liberal American Bar Association, and the way in which they favored jurists who would maintain the 4S liberal status quo Quite often, the
treatment of Judge Bork was brought into the discussion as a means of demonstrating the
unfair rating system the American Bar Association’s Standing Committee on Judiciary
utilized. The degree to which they were successful in their efforts to stymie Clinton’s
appointments requires an investigation beyond the reach of this discussion; however.
President Clinton often blamed conservative interest groups for blocking his
appointments once they reached the Senate Judiciary Committee.
Once President George W. Bush was inaugurated and in the months immediately
following during which the Senate remained under Republican control the terms of this
discussion shifted in an interesting way. On March 22, 2001, the ABA learned that the
47 Bush administration would not be using them to screen their nominees. Immediately,
the press exploded with a discussion as to whether the Federalist Society would take over
this role. The attempt to frame the debate into a conversation over which organization
would provide the more reliable assessment of competency in a judge is of principle
concern in this discussion. That the Federalist Society could potentially fulfill such a
function suggests the importance of its ties to the legal academy and legal education as
well as the conservative desire for constraints on judicial interpretation. These ties enable
the understanding that they are qualified to determine the competence of nominees,
though their partisanship raises the fear that they will not, in fact, do so “objectively”
(meaning, with political neutrality). Never, within the press or within conservative
circles, did the notion that the Free Congress Foundation could maintain this function
surface, even though it had been active and influential for so long in the nominating and
106 selection 49 process . In fact, a review study of New York Times and Washington Post articles during this period turned up no mention of this very important organization in this
50 capacity . Clearly, the Federalist Society was not given the same status as any other interest group, but rather some claim as experts on the necessary degree of expertise in law that judges ought to have. Their competition was not other interests groups, but rather the only other group with a powerful claim to such an expertise: the ABA.
The legitimacy of both the ABA and the Federalist Society to make such a claim was the critical element in the contest over who would emerge as the quality control mechanism of the 51 legal profession . The administration, arguing that the ABA was “just an interest group and would be treated as all the rest ultimately also had to assign the
Federalist Society to that status. And, as can be seen in the discussion above of Steve
Calabresi’s views, they, too, appear to situate themselves in this space. There was no criterion that would make elevating the Federalist Society above the ABA in this that would be generally acceptable to either the legal profession or the public.
Note that in the general goals discussed above, the Federalist Society explicitly situates its work in the political arena, whereas the ABA describes itself as working on behalf of the legal profession as a whole. The ABA also frames their policy goals as a means of promoting the legal profession in the eyes of the American public, in the eyes of the judiciary, in the eyes of legislators. One can imagine with such an acute sense of the profession’s image, that the ABA’s policy goals have shifted with the times. The
ABA has as its stated mission the promotion of the legal profession and the rule of law.
The Federalist Society states that its concern is with the promotion of a particular political vision that includes the rule of law, but says nothing about representing the legal
107 profession. As the longstanding representative and police of the profession, the ABA has had to balance a lot of different interests within its organization to maintain its position.
Today s membership, according to its web page, is around 400,000 - very large, especially compared to the Federalist Society’s 25,000 membership. For the Federalists, lawyers who are not conservatives or right libertarians need not apply for membership.
This reflects one of the principle differences of the two organizations - the ABA has a need to have as many practicing lawyers as it can in its fold in order to legitimate its position as the representative and watchdog of the profession. This requires a balancing act, of sorts, around various political positions, backgrounds, etc. This sort of balancing of interests seems to lead it to a political position that is moderately liberal.
The Federalist Society, by contrast, needs to have a membership committed to a political ideology and while it does consider itself a sort of watchdog, it is not interested in being the representative of the legal profession or in providing a space in which legal
professionals come together to discuss challenges they face as professionals. It does provide a space where conservatives and libertarians can discuss what these categories mean and the various ways legal theory and jurisprudence should reflect these ideologies.
But its principle political goal is to reshape the profession to its own vision through its programs and networks. Unlike the ABA’s vision that will change with the times and the
dominant structure of the state, in an effort to maintain its status the Federalist Society’s
vision should remain static because it is less concerned with the issues of the day and
more concerned with promoting an ideology. And, just as the it does not welcome
liberals or members of the left, so too it would not welcome judges, lawyers and law
professors who do not fit their parameters in the judicial selection process.
108 Moreover, when the ABA’s role was strengthened by the Democrats of the
Judiciary Committee after Senator Jefford’s defection from the Republican party, their
decision was less controversial than had been the suggestions that the Federalist Society
replace the ABA had been. What this suggests is that the institutional practices of judicial selection have incorporated the ABA to such an extent that the ABA has become
part of this institution. The legitimating criteria, here, is the ABA’s claim to police the
profession and ensure professional standards among lawyers and judges. Yet. the ABA is
not completely incorporated into the state. Rather, the relationship is dependent upon
their ability to maintain their status as the representatives of the profession and not appear
too partisan. Thus, the symbolic importance of competency and neutrality place
constraints on what is acceptable within this process. However, the obvious partisanship
of the Federalist Society places them in a situation where it is very difficult to imagine
(though not impossible) a time when they will take the place of the ABA in the selection
process. A closer look at the controversy as it unfolded and situating the Federalist
Society not only as a competitor of the ABA but also as part of a larger conservative
movement is instructive in understanding both the institutional practices of the judicial
selection process and the importance of neutrality and competency in liberal legality.
The sociology literature and the sociology of law literature has long discussed the
ways in which lawyers are schooled in the grammar of law, taught to frame their
arguments in particular ways that are supposed to adhere to a standard of
52 its professionalism . Through legal training, lawyers are taught the culture of law and
language and speak it with appropriate etiquette. As Christine Harrington has pointed out
in her co-edited volume with Maureen Cain, lawyers work with ideologies, utilizing
109 them, constructing them and are also shaped by them. Spaces where such discussions take place can be understood as sites where legal ideology is constructed. As Harrington notes,
The struggles between professions and within the legal profession over work are other sites for the production of ideologies about law. Lawyers compete with other professionals for control over work. Interprofessional competition is one way lawyers differentiate themselves from other professions . . . Intra- professional competition over work is also one way in which members of the bar distinguish their work from 53 what other lawyers do .
In this chapter, the judicial selection process is conceptualized as such a site. The
confirmation process itself, along with the discussions around it concerning judging and
legal reasoning, work to distinguish judging and lawyers’ work from other forms of
politics. As these discussions resolve into new appointments to the bench, this process
also shapes a legal landscape that in turn shapes the legal strategies of activist lawyers.
However, these sites have institutional patterns of behavior connected to them, and in this
case the practices include the concern over the appropriate role of interest groups in the
process as well as the need to maintain political neutrality in order to appear objective in
judging judges.
Yet, the work here does not utilize a pluralist frame where this process is one
54 among “loci for arriving at political decisions ,” but rather sees this point in the process
as a place where legal activists work diligently to ensure that the particular form of legal
ideology they advocate will come to dominate the interpretive practices of the judiciary.
The heavy emphasis on the importance of “competency” in this particular debate suggests
competition, the way that the state is not merely a place where, through interest group
decisions are made but rather a place where a particular group of people (i.e., legal
upon the belief professionals) are able to maintain their status. Their legitimacy depends
110 that well trained judges utilize correct interpretive practices - whether those practices are conservative or liberal, they must be “legal.” The question, then, becomes what is
’ legal. This term is itself shaped by the political orientations of those utilizing it so that
“legal” is also tied to the theories 55 by which judges interpret the law. An “incorrect” interpretative theory is therefore seen as not “legal” in this discourse.
In juxtaposing the and the ABA Federalist Society, I am not simply following the political context of our times. Rather, 1 want to highlight the way in which ideologies shape these groups and their understanding of the rule of law. By analyzing the Free
Congress Foundation along side these other two organizations, we can begin to see how the ABA and the Federalist Society can come to compete on an official level with one another as the police of the profession while the Free Congress Foundation cannot. But
we can also see why the Federalist Society cannot quite replace the ABA in this role. It,
quite simply, still appears too partisan to be believably “objective.” It is also noteworthy
that the ABA has changed over time as it has become increasingly linked to state power.
It has moved from a very conservative organization to something many would label
56 moderately liberal. This may, indeed, track with changes in the institutions, and, as those institutions changed their shape through the New Deal, and the ABA adjusted its
positions to remain legitimate in the eyes of their membership. Its focus has always been
and remains the promotion and maintenance of the legal profession. Unless the
Federalist Society is able to convince the public that they are equally as concerned with
these goals and less concerned with promoting a conservative political agenda, they will
not be able to take over the ABA’s role in the selection process.
Ill 1
The title of this chapter is a play on Sheldon Goldman's study of the selection process in ower courts, Picfong Federal Judges: Lower Court Selection from Roosevelt through' Reagan (New Haven: Yale University Press, 1997). Professor Goldman deserves a special acknowledgement here for his consistent support and expert advice in understanding the judicial selection process and its dynamics.
John Brigham, The Cult of the Court (Philadelphia: Temple University Press, 1987), ^ p.
This is the period of time in which the debate was the most heated. After Senator Jeffords left the Republican party and the Democrats gained control of the Senate, the Senate Judiciary Committee made clear that they would continue to rely upon the ABA in the selection process.
3 Christine B. Harrington, “Outlining a Theory of Practice,” in Lawyers in a Postmodern World: Translation and Transgression, eds. Maureen Cain and Christine B. Harrington, (New York: New York University Press, 1994), pp. 49-59.
4 John Brigham, Cult of the Court.
5 Sheldon Goldman, “Reaganizing the Judiciary: The First Term Appointments,” Judicature 68, no. 9-10 (April-May 1985): 315; Sheldon Goldman, “Reagan’s Judicial Legacy: Completing the Puzzle and Summing Up,” Judicature 72, no. (April-May 6 ' 1989): 319; Herman Schwartz, Packing the Court: The Conservative Campaign to Rewrite the Constitution (New York: Scribner, 1988).
6 The best early example of the textualist argument among the activists studied here is Richard Epstein, Takings: Private Power and the Power ofEminent Domain (Cambridge: Harvard University Press, 1985).
•y John Harrison, a University of Virginia law professor, at the Federalist Society meeting, March 1-2, 2002, Yale University.
o Free Congress Foundation website, www.ffeecongress.org, downloaded on March 14, 2002.
9 Ibid.
10 For the FCF’s activity in the Bork nomination, see Patrick B. McGuigan and Dawn M. Weyrich’s account in Ninth Justice: The Fight for Bork (Washington: Free Congress Research and Education Foundation, 1990).
1 Goldman, Picking Federal Judges. For the ABA’s past activity, see Joel Grossman, Lawyers and Judges: The ABA and the Politics ofJudicial Selection (New York: John Wiley and Sons, 1965).
112 .
12 See the staten>ent by Martha W. Barnett, the President of the American Bar Association in response to the President’s decision. The letter, dated March 22. 2001 was posted at the ABA s website, www.abanet.org, download date April 15. 2001
13 Ibid.
There is already a large body of literature investigating the ideologies and the legal profession as well as progressive legal activism. Such works include Bruce Ackerman. Reconstructing American Law (Cambridge: Harvard University Press, 1984); Brigham, Cult the of Court ; Richard Abel, American Lawyers (New York: Oxford University Press, 1989); Pierre Bourdieu, “The Force ” of Law: Toward a Sociology of the Juridical Field The Hastings Law Journal 38 (1987): 805-853, trans. Richard Terdiman; John Brigham, “Professions of Realism,” in The Constitution ofInterests; Beyond the Politics ofRights (New York: New York University Press, 1996); John Brigham and Christine B. Harrington, Realism and Its Consequences: An Inquiry into Contemporary Sociological Research,” International Journal of the Sociology ofLaw, 17 (1989): 41-62; Christine Harrington and Maureen Cain, Lawyers in a Postmodern World: Translation and Transgression (New York: New York University Press, 1994). A recent collection that addresses lawyers and their role in law from multiple perspectives is Richard Abel (ed.). Lawyers: A Critical Reader (New York: The New Press, 1997.
It should be noted that the Free Congress Foundation has many members of the Federalist Society within it. One can see the close relationship in their commentary on the judicial selection process as well as by cross checking their commentators with the featured speakers of the Federalist Society’s meetings.
16 John Nowacki, "Senate Democrats See ABA's Reduced Role as an Excuse to Delay
Nominees," The Free Congress Commentary , March 28, 2001, distributed electronically by the Free Congress Foundation, Inc.
17 Adrienne Drell, “Group Dismisses Judicial Screening Role,” The Chicago Sun-Times,
April 19, 2001, News Section, p. 30.
18 4 Otto (94 U.S.) 1 13, 24 L. Ed. 77 (1877).
19 John P. Heinz and Edward O. Laumann, Chicago Lawyers: The Social Structure of the Bar (New York: Russell Sage Foundation Press, 1982); Terence Halliday, Beyond Monopoly: Lawyers, State Crises, and Professional Empowerment (Chicago: The University of Chicago Press, 1987); Michael Powell, From Patrician to Professional Elite: The Transformation of the New York City Bar Association (New York: Russell Sage Foundation, 1988); and Magli Saffarti Larson, The Rise ofProfessionalism: A Sociological Analysis (Berkeley: University of California Press, 1977).
20 Terence Halliday and Lucien Karpik, Lawyers and the Rise of Western Political Liberalism: Europe and North Americafrom the Eighteenth to the Twentieth Centuries (London: Oxford University Press, 1997)
113 , ,
22 ' powell, From Profession to Professional Elite p.10
23 Ibid.
als0 Benjamin Twiss, Lawyers and the Constitution; How Laissez Faire Came to the Supreme Court (Princeton: Princeton University Press, 1942); Arnold M. Paul. Conservative Crisis and the Rule ofLaw; Attitudes ofBar and Bench 1887-1895 (New York: Harper and Row, 1969); Gabriel Kolko, The Triumph of Conservatism 4 Reinterpretation ofAmerican History, 1900-1916 (New York: The Free Press. 1963).
25 Pound at the ABA website, www.abanet.org, download date April 15, 2001.
26 Ibid.
27 The best description to date of the ABA’s entry into the judicial selection process is Joel Grossman’s book, Lawyers and Judges', see also Goldman, Picking Federal Judges, and David A. Yalof, Pursuit ofJustices; Presidential Politics and the Selection of Supreme Court Nominees (Chicago: The University of Chicago Press, 1999).
28 Grossman, Lawyers and Judges, p. 49
29 Ibid., p. 50
30 Ibid., p. 59
31 Ibid., p. 64
Quoted in Grossman, Lawyers and Judges, p. 64
Yalof, Pursuit ofJustices, pp. 42-43
Terry Carter, “The In Crowd: Conservatives Who Sought Refuge in the Federalist Society Gian Clout,” The ABA Journal (September 2001): 46-51.
35 Ibid.
36 Cheney, November 15, 2001, published in the Federal News Service.
37 Carter, "The In Crowd."
38 Drell, "Group Dismisses."
39 on April 2001. The Federalist Society website (www.fed-soc.org) , downloaded 15,
40 See Austin Sarat, “The Paradox of Participation,” in ed. David Kairys, The Politics of rd Law 3 edition (New York: Basic Books, 1998), pp. 97-1 14.
114 Karen O’Connor and Lee Epstein, “The Rtse of Conservative Interest Group Lm gat,on, The Journal ofPolitics 45 (1983): 479-489. Lee Epstein, Conservatives Court (Knoxville. in University of Tennessee Press)
Chrtstopher , th Sm rice Antonin Scalia and the Supreme Court ‘s Conservative Moment (Westport: Praeger Press, 1993); David Schultz and Christopher Sm.th The 0/ C An,0nin Scalia < Lanham: R°wman iot?7u Cf t ™d Littlefield bhshers, 1996), Richard Bnsbm, Justice Antonin Scalia and the Conservative Revival (Bahtmore: Johns Hopkins University Press, 1997); and Sara Diamond, Not By Politics Alone. The enduring Influence ofthe Christian Right (New York:Guilford Press. 1998).
ot«7°rth of “ y «^ple case sponsorship include the recent takings 'It case, Palazzolo v. Rhode Island (5j 3 U.S. 606, 2001). These groups have also widened the area of their litigation interests to include other conservative causes. Another example of a high profile case, which was sponsored by a right libertarian group, is the recent Ohio school choice case. Here, the Institute for Justice has been deeply involved and Clint Bolick, their lead attorney, is representing individuals seeking to make school vouchers constitutional.
Sheldon Goldman, Elliot Slotnick, Gerard Gryski, and Gary Zuk, "Clinton's Judges: Summing Up the Legacy," Judicature 84 (March/April 2001): 228-254. For analyses of various facets of judicial selection during the Clinton presidency, see the symposium issue co-edited Elliot by Slotnick and Sheldon Goldman entitled "Clinton's Judicial Legacy," Judicature 84, no. 5 (March/April 2001).
4 ‘ In 1996, the Senate held hearings to discuss the nature of the ABA and whether it should retain its role in the selection process. Orrin Hatch and Bob Dole both made statements concerning the ABA’s “left-leaning.” See Neil A. Lewis, “Senator’s Question Bar Association’s Role in Selecting Judges,” The New York Times , May 22, 1996, Section A, p. 14.
46 The Standing Committee gave Judge Bork their highest rating. However, four of its members dissented. This has more recently been discussed within the context of Judge Pickering’s nomination, a process that conservatives refer to as “borking Pickering.”
4/ The official notification was made on March 23, 2001 according to The Washington Post. See, Amy Goldstein, "Bush Curtails ABA Role in Selecting U.S. Judges," The
Washington Post, March 23, 2001, Section A, p. A01.
See for example, Thomas B. Edsall, “Federalist Society Becomes a Force in Washington; Conservative Group’s Members Take Key Roles in Bush White House and
Help Shape Policy and Judicial Appointments,” The Washington Post, April 18, 2001,
Section A, p. A04; Neil A. Lewis, “A Conservative Legal Group Thrives in Bush’s
Washington,” The New York Times, April 18, 2001, Section A, p. 1.
115 As will be discussed below, the Free Congress Foundation has been active since the m.d 1980 s, and worked diligently on behalf of Judge Bork's nomination, as well as working in opposition to Clinton’s lower court nominations.
This material was collected through a Lexis search limited by the dates between the administration’s announcement on March 22 nd and the end of May 2001, searching on the key words “Free Congress Foundation.”
This move is closely related to what James C. Foster discussed as “apolitical politics” in his book, The Ideology Apolitical of Politics: Elite Lawyers' Response to the Legitimation Crisis of Capitalism, 1870-1920 (Millwood: Associated Faculty Press, 1986). Foster studied the discussions regarding the legal profession at the turn of the last century and suggested that what was driving much of the concerns voice by conservative legal activists in that period was the protection of capitalism. While not wanting to go as far in the argument as he does, the relationship between the legal profession and capitalism is well worth considering in light of the rise of today’s conservative legal activism. What seems most helpful in his discussion, however, is the notion that an ideology of apolitics is part of the discourse of professionalism and characterized the bar movement of the nineteenth century. Similarly, today, both the ABA and the Federalist Society falls back a on condemnation of politics to support their particular ability to ensure competent judges. For a sympathetic critique of Foster’s argument, see the William Rose’s insightful dissertation, Legal Modernism and the Politics ofExpertise:
American Law ’s Crisis ofKnowledge and Authority, 1870-1930 (Amherst: University of Massachusetts Press, 1999).
‘ See footnote 14 above.
43 Harrington, “Outlining a Theory of Practice,” in Lawyers in a Postmodern V/orld (citing Larson, The Rise ofProfessionalism.
54 Ralph Miliband, The State in Capitalist Society (London: Weidenfeld and Nicolson, 1969), pp. 2-3.
44 In this context, the term “legal” can easily be understood as an essentially contested concept, as William Connolly has described the notion of “democracy” and other highly contestable terms in political discourse. See Connolly, The Terms ofPolitical Discourse (Princeton: Princeton University Press, 1983).
56 However, as in James Weinstein’s analysis in The Corporate Ideal in the Liberal State: 1900-1918 (Boston: Beacon Press, 1968), “corporate liberalism” or “new liberalism” may be more accurate than “moderate liberalism.”
116 CHAPTER 5
ACADEMIC SAFEHAVENS: LAW AND ECONOMICS AND THE FEDERALIST SOCIETY
Introduction
As Laura Kalman explains in The Strange Career ofLiberal Legalism, in the late
1970’s and early 1980’s, concerned about the lack of conservatives in the legal academy, leading lights among conservative legalists called for the creation of spaces that would encourage and support law students interested in pursuing conservative jurisprudence.'
Quickly thereafter, the Federalist Society took shape as a debating society beginning at
Yale Law School, the University of Chicago School of Law and Harvard Law School, and within a lew years, chapters sprung up 2 throughout the country. Predating the
Federalists by over a decade but also an important place for conservative legal scholars and tlieii students was the development 3 of the law and economics movement. This group s greatest contributors have been at the University of Chicago, but it also had strong proponents early at other institutions, including Guido Calabresi at that time at
4 Yale Law School.
While both law and economics and the Federalist Society have been linked to conservative political agendas, in contrast to the Federalists, law and economics is most often considered an “academic movement” within the legal academy. It is not intended to be a debating society but is rather a group of legal academics and practitioners seeking to understand the way in which the economic analysis of law can enable sound judicial interpretation. Nor does the law and economics movement have an organizational structure that includes boards of directors, law school chapters, practice groups designed
117 to enable more effective lawyering, etc. Yet, these scholars hold conferences, maintain journals and provide Ukenunded lawyers and other scholars with a place lo develop their
ideas. There are significant differences in these organizational and structural elements,
for the purposes of this chapter the most important aspect of both groups and their
re'attonship to one another is the way they function as spaces where legal tdeology can be
formed by conservatives lawyers and scholars. By focusing our attention here, we can
once again see the importance of intraprofessional competition in the creation of legal
ideologies while explonng the way in which ideas are developed before being
implemented through legal advocacy. But also quite importantly, we can find see that
legal realism serves as a backdrop for much of what occurs in these safe havens. The engagement with legal realism, I argue, serves to recreate it as well as enabling the
production of conservative forms of legal ideology. These engagements around legal
realism and the working out of conservative legal ideology demonstrate the empirical
reality that ideologies are constantly undergoing reproduction and 5 transformation .
Moreover, we can see that the conditions within the legal academy and within the movement of legal activists under investigation in this dissertation idioms and their potentials foi elaboration enable transformation and sustenance of them as conservative ideologies 6 take shape .
Law and Economics: Conservatives and the Quest for a Foundation
The story of the law and economics has been told elsewhere. Both Laura Kalman
and Gary Minda have written about its emergence within the legal academy and its
relationship to Legal Realism and Pragmatism. While I draw on this work, supplemented
118 with other sources, to gain an understanding of the development of the movement, the goal here is to understand the emergence of law and economics as a site where scholars have been able to debate and define legal ideology. Interestingly, as law and economics developed, it became of increasing interest among progressive scholars as a means of understanding market forces and their relationship to the law, as well as a possible means for seeking progressive political change through 7 economic theory . These scholars have taken the economic analysis of law in a direction that is not particularly helpful to conservative political goals. However, the presence of these progressive scholars within the movement contrasts sharply with the relationship the Federalist Society has with scholars who are neither conservatives nor right libertarians. Thus, this group of progressive scholars indicate a distinction between the intellectual movement and the structured society of the Federalists that will be important later in the chapter.
It must also be noted that the law and economics movement does have its own association, the American Law and Economics Association, which publishes a journal, the American Law and Economics Review , currently co-edited by Judge Richard Posner and Professor Orley Ashenfelter of the Department of Economics at Princeton University.
However, the association and the journal is somewhat set outside the legal academy as its membership includes both legal academics and non-legal academics working on research in law and economics. This, too, leads to an important contrast with the Federalist
Society, which exists within the legal academy (and, by extension of its members, in the
legal profession) and is nearly exclusively the domain of legal academics.
Depending upon how you date the emergence of the contemporary movement in law, law and economics predates the Federalist Society by at least two decades. Tracing
119 its roots within the legal academy back in time, the movement began in the early 1960’s with the publication of Coase’s “The Problem of Social Cost,” and Guido Calabresi’s
“Some Thoughts on Risk Distribution 9 and the Law of Torts.” The Journal ofLaw and
Economics , begun in provided 1958, a forum for some of the earliest scholarship, though this work was also published in major law reviews. However, the study of law and economics gained a great deal of momentum in the early 1970’s when Judge Richard
Posner, then a professor at the University of Chicago School of Law, and several of his colleagues began working in the area. Within a decade, the movement had drawn enough attention to itself to have begun a second journal, The Journal ofLegal Studies , and was
10 closely associated with the University of Chicago. As Gary Minda has pointed out, the
forces responsible for the momentum the movement gains in the 1970’s are unclear,
though the growing interest in the economic analysis of law did coincide with an
increased interest in interdisciplinary' approaches to the study of law." Both Kalman and
Minda agree that law and economic scholars were in part responding to a need for
authority and autonomy of law brought on by the critique of both fundamental rights and
the legal process schools in jurisprudence. These scholars sought out economics as a
source for a foundation of justice that would legitimize law and provide it with authority
12 and autonomy.
Law and economics scholars became a moving force within the legal academy in
a period when conservatives were not particularly plentiful on law faculties. While in
in their work they did not explicitly embrace conservative political ideology, their interest
markets and particular forms of individual liberty expressed, at the very least, a strong
theory. Perhaps more affinity for conservative and right libertarian political and legal
120 .
telling were the results in study after study supporting conservative policy positions. However, according to Richard Posner, the goal of the research was the objective study of law. They maintained that their perspective was superior to the analysis provided by normative constitutional theory with regard to the nature of legal decisionmaking because it was verifiable empirically and therefore the best way to understand the nature of law.
Yet, as Laura Kalman remarks, there was a certain amount of “coyness” in these claims.
For example, she points out that studies showing that consumer protection legislation often hurts rather than helps consumers and the claims made by Posner that such a finding not was an endorsement of free markets but rather simply a confirmable,
scientific finding .” 14 was a “distinction without a difference Posner’s position, despite well considered criticisms, remains the same: law and economics is a way of providing empirical findings concerning the 15 workings of the legal system .
Indeed, the epistemological argument concerning importance and productivity of
the economic analysis of law (as Posner generally calls it) is critical for understanding the goals of the movement more generally. In the afterward to the first volume of The
Journal ofLegal Studies , Posner, its editor, argues that the goal not only of law and
“. economics but of legal studies more generally should be, . to make precise, objective,
and systematic observations of how the legal system operates in fact and to discover and
16 explain the recurrent patterns in the observations - the Taws’ of the system .” He goes
on to explain that the journal should itself define the research agenda of this “emerging
field” by providing a place for publication and discussion for researchers. Moreover,
through its editorial decisions, Posner predicted a “sense of identity” would emerge for
121 the field. To that end, he noted three major themes emerging in the first volume that would set the agenda for future work. 17
Those three main themes are telling for the goals of the movement more generally. The first, concerning the “deep relationship between the economic and legal orders” was represented by the work of George Stigler and Robert Coase among others.
The second theme, “the behavioral effects of law” included work by Franklin Zimring and Issaac Ehrlich and included an impact study by Julius Getman. The final theme, and very important, is the “quest 18 for a theory of legal decision-making.” Here, we have work by political scientist Martin Shapiro as well as Posner himself among other authors.
The point here is that there was, indeed, an interdisciplinary approach to law occurring, that it attempted “objective analysis,” and, most importantly, that it covered three of the perennial themes in legal theory more generally: what is the relationship law has to other social and economic forces? How does law shape behavior? And what is the best means by which judges should judge? These themes situated the law and economics movement well within the disciplinary concerns of both normative jurisprudence and the social
science study of law, but did it through an argument emphasizing positivistic social
science, and in particular, drawing upon a positivistic form of economic theory. Later, in a James Madison Lecture on Law presented at NYU in 1997, Posner made a strong claim
that he is “against constitutional theory,” and is, instead “for” legal theory grounded in a set of research questions he supplies. That a great deal of research on those questions
exists in various other literatures is not a part of his analysis and one suspects this may be because research not based in positivistic economic theory is not empirical in Judge
• • 19 Posner’s opinion.
122 While the scientific ambitions of the movement have been apparent since its inception, the push to add a normative dimension to this work is most apparent once law and economics establishes itself in the legal academy. Prior to its move into the legal academy, as Robert Coase once remarked, the movement was focused upon work that economists do - understanding the dynamics of markets and the economic system.
Because law was part of these dynamics, economists turned to law and legal institutions as a unit for analysis. Rather than using it to understand markets the law scholars who adopted the economic approach to law have had a somewhat different goal. Law and
Economic scholars, while continuing this avenue of research added the particular issues they brought with them from their legal training. Thus, the movement enters the debate concerning the way judges should judge once the economic analysis of law enters the legal academy; and, by shaping their theoretical assumptions in particular ways, they enter this debate on the side of conservative legal ideology.
This shaping of their theoretical assumptions becomes increasingly apparent as the movement develops in the 1970’s, and draws a great deal of criticism by the early
1980’s. To more adequately understand the development of conservative Law and
Economic ideas, there are two very fruitful places to look. The first has to do with a set
of debates that takes place with Ronald Dworkin in the late 1970’s and early 1980's, that
continue to flare up from time to time concerning the way in which efficiency is defined
by Posner and others. Similarly, an important exchange between the Reform School of
Law and Economics and the conservative law and economics scholars can help us see
progressive what the distinction is between a conservative law and economics and a more
1980's and form. Not surprisingly, this second set of debates, beginning also in the
123 continuing through the most recent scholarship in this field, concerns the definition of
morahty and whether there is a moral basts for the older form of law and economics.
That, when engaging politically different nonns, the argument moves to one regarding
morality and ethics is very important to note ethics is most certainly within the
established realm of legal academic discourse. Lawyers worry over ethics, and their
professors and intellectuals also struggle with ethical debates at least in part because the
legitimacy of the legal profession and the law is grounded in a belief that those we entrust
wtlh it - lawyers and judges - are behaving ethically. In this sense, the importance of
these debates is at an intersection of theory and practice worth noting: if the economic
analysis of law is to be implemented in courtrooms, then it must have a convincing
ethical foundation.
Dworkin and C onservative Law and Economics
Dworkin takes up the importance of the concept of efficiency in 1977 in Taking
Rights Seriously. At issue whether hard cases’ arc decided by judges based on
principles or policy. Taking the argument directly to the heart of the early form of law
and economics, Dworkin critiques Posner’s work in The Economic Analysis ofLaw to
flesh out his claim that rules made by judges serve to make resource allocation as
20 efficient as possible; and, Dworkin turns to Robert Coase’s famous article, “The
Problem of Social Cost” to interrogate whether judges are explicit in basing their
-1 decisions in economic policy. Dworkin argues that fairness rather than utility explains
many decisions made by judges who, all evidence indicates, neither knew nor understood
2 the economic value of their rules." Further, he takes issue with Posner’s understanding
124 of wealth maximization through his discussion of value. Dworkin points out that
Posner's conception is neither “self-evident or 23 neutral” as Posner claimed. Rather, he says,
It is congenial to a political theory that celebrates competition, but far less congenial to a more egalitarian theory, because it demotes the claims of the poor who are willing to spend 24 less because they have less to spend.
Dworkin moves to Coase’s theory, suggesting that this is the more serious
25 challenge to his own position. While explicit references to economics can be found in doctrine, Dworkin argues that Coase’s position does not take into account competing rights in a case. He says that when competing concrete rights are at issue, judges will speak in economic terms to describe the balancing they must do to make a decision.
Thus, the language of utility may prove to be useful to them in such a case. Yet by casting the debate in those terms, they have not ignored the principle underlying the
26 decision. Rather, a judge “dresses” his argument in economics to make a point.
Dworkin suggests that Coase misunderstood what judges were doing when they made reference to economic terminology because whenever they do so, “they do not subordinate an individual right to some collective goal, but provide a mechanism for
27 compromising competing claims of abstract right.”
This discussion moved out of the books and into symposia and journal articles in the late 1970’s and early 1980’s. Dworkin continued his dialogue with Posner in The
Journal ofLegal Studies in 1980 as well as in a symposium published in The Hofstra Law
Review. One particular discussion took place at a symposium entitled Changing the
Common Law: Legal and Economic Perspectives in 1979. The debate appears to have been rather heated and followed the same lines as outlined above. Posner’s response (as well as other conservative law and economic scholars such as Guido Calabresi) took
125 many forms. Debating and responding in the reviews, the law and economics journals as well as in his books, Posner was pushed to refine his notions of efficiency, utility and wealth maximization. Along with Guido Calabresi, he sharply distinguished normative and positive theory. This proceeded on two fronts. In the Hofstra symposium. Calabresi fended off Dworkin’s critique of efficiency by explaining that “justice talk” was distinguishable from discussing efficiency. Therefore, to talk of trading justice for efficiency, as Dworkin had done in his exchanges with Posner, was to confuse the issue.
He implies that justice is the realm of the philosopher and simply not part of the theory of the economics of law.
In a slightly different venue but in about the same period, Posner made a similar move in which he distinguished philosophical utilitarianism from economic utilitarianism. However, Dworkin’s insistence that the concept of value used in the economic analysis is norm-laden still required an answer. To provide one, Posner turned to what is really the underlying theme of much of this work: in order to choose among
competing ethical considerations, one must employ the following evaluative criteria:
1 . that the theory fails to meet certain basic formal criteria of adequacy, such as logical consistency, completeness, definiteness, and the like;
2. that the theory yields precepts sharply contrary to widely shared ethical intuitions — precepts such as that murder is in general a good thing or that a
sheep is normally entitled to as much consideration as a man;
3. that a society which adopted the theory would not survive in competition with 30 societies following competing theories.
Each of these criteria are rather interesting in their various inferences, and could be
fruitfully explored at greater length. However, for our purposes here they demonstrate
the need these conservatives have to find a foundation to ground ethics and principles.
the economic analysis Indeed, a decade later, Posner argues that this is what distinguishes
126 oflaw from Legal Realism and its relativity.” However, to avoid Langdellian formalism through all this discussion of a scientific basts for legal decisonmaking, Posner explores the importance of ethtcs in judicial decisions, bu, always with the hope of maintaining a grounding through stipulated criteria for evaluating the efficiency of 32 ethics. Thus, it is
through engagement with other scholars that the ideas formulated by conservative law
and economics scholars take shape even as it constitutes their identities. 1 will discuss
tins analysis at greater length, but first we must consider another front of scholarly attack on the ideas in Posnerian law and economics: the progressive or Reform School.
Posner and Malloy
in Adam Smith and the Philosphy Law of and Economics, Posner and Robin Paul
Malloy, a figure in the progressive law and economics movement, engage in a discussion
33 concerning morality and legal theory. Here, Malloy argues that the particular version of
law and economics advanced by Posner is tied to a conservatism and that its focus on
wealth maximization and market 34 efficiency are deeply rooted in that ideology. He
points out that while law and economic scholars share an interest in the various
relationships of legal systems and economics, the variety of ideological perspectives
available within the body of work make it impossible to tie the entire movement to one
viewpoint (despite some scholars attempts to do so). All these perspectives, Malloy says, are irreducible to quantitative form. “Thus,” he says, “there can be no scientific answer
35 to the question confronting us tonight [i.e., Is law and economics moral?].” Moreover, in an exchange with Posner that occurred prior to this debate in the law reviews, Malloy says Judge Posner
127 dly e 0miC efficiency wealth ’ maximization, and cost- benefit analysis were not T the only factors to consider in trying to use law to PreS Smg S °C ial and le al § Problems . . . Judge Posner , indicated that some of these factorsf t are drawn ^ from intuition and some 36 apparently from elsewhere . Malloy argues that since Posner is not explicit in stating what these “other factors” are. it is unclear how “we [are] to know what ‘rules’ of law and social conduct are good and
37 morally worth supportf .]” Malloy, however, has an answer to this very important question, and he grounds it in the philosophy of Adam Smith. He states that Smith taught that we must learn good values from bad values, good philosophies from bad philosophies, 38 morality from immorality based .” on experience Malloy says that given his own values, Posner s position is deeply troubling as it ultimately can provide the rationale for such abhorrent practices as slavery and treating the poor and disadvantaged badly. Citing some examples from Posner’s own discussions of “distasteful” possible outcomes of his theory, Malloy argues that advocating a theory that legitimates them
(even if only as a possibility) indicates that Posner’s moral grounding is faulty and the
39 theory is “a moral .” monster Avoiding that monstrosity requires grounding legal theory in philosophy and moral values rather than the relativity of “objective criteria” designed to make law efficient rather than moral. Philosophy, then, is not irrelevant to legal
decisionmaking but rather a means of anchoring it to ensure ethical outcomes.
Judge Posner’s response begins by stating that he is very proud of his particular monster and suggests that the differences between he and Malloy are semantic rather than
truly substantive. He says that there is an ambiguity in the language here: “What exactly
do you mean by slavery? Is it really always the case that slavery is always and
40 everywhere immoral?” Judge Posner’s rhetorical ploy does point to ambiguities in the language but ultimately, despite attempting to side step the issue momentarily, he has to
128 find a way to address the particular foundation Malloy is pointing to as a grounding for legal theory. To do this, he situates Malloy as a natural rights theorist, desptte Malloy’s emphasis on learning through an experience of choosing among competing values. He then dismtsses natural rights theory as unhelpful to legal decisionmaking. Instead, Posner wants to constder the particular benefits a legal norm has for a particular society. Thus, slavery is not always abhorrent if it maximizes wealth and increases efficiency in a society. At some moments in history in some places it is abhorrent and at others it will not be. This tracks along the same logic he employed in his discussion with Dworkin
(recall the three evaluative criteria above). Yet, in this discussion he reveals the way in which his theory is tied to values promoting the status quo that are truly conservative insofar as the institutions of contemporary society are concerned.
It also suggests a certain relativism not distantly related to legal realism despite its language of objectivity and apolitical 41 decisionmaking . While distinguishing his position from one that also seeks a foundation, Posner reveals the normative undergirdine of his theory. But he also produces it in this exchange. The tensions among him, his close u colleagues and their interlocutors constitutive the field law and economics” as well as formulating ideas that are amendable to their values and political positions. Dworkin and Malloy both stake out a territory where philosophy becomes important as a source for boundaries around the possible. Posner’s foundation is in criteria for deciding among competing values. For all three positions, the foils a legal theories without an anchor and
therefore vulnerable to the winds of politics and a legal theory that is so formalistic as to
make it impossible to make decisions relevant to a changing society.
129 Thus, here in these discussions wir* 1 an see legal realism shaping the discourse and empowering the theory budding these schoiars are engaging in through their discussion. For it is in .egai reaiism that we have juxtaposition - forma, ism versus political jurisprudence - in its clearest formulation. The reads, critrque of formal,sm, through whtch lega. realism was itself constituted continues to provide a protean soil for
discourse. As we turn to the Federalist Society, we see that here, too, lega, realism haunts the hallways and motivates a search for a foundation to ground legal theory. As the conservatives in this debating society look for a means to move away from the
liberalism they see in legal realism, they also are constituted through a critique of legal
realism and a hope of finding an anchor for judical interpretation and expert lawyering.
Chamzinu the Lmml
As the story of the founding of the Federalist Society is told, Steve Calabresi, nephew of Guido Calabresi and now a law professor at Northwestern University School
of Law, was sitting with his class at Yale Law School one day when he and his
classmates were asked how many people voted for President Reagan in the recent
election. Only two in a class of 88 raised their hand. At that moment, Calabresi claims,
he realized that conservatives did not have a place to meet, support one another and
develop their ideas. As he told the American Bar Association Journal , “I think some
others in that room had voted for him, and 1 realized we needed an organization to at least
” 4 encourage others to come forward. " Indeed, the lack of a conservative presence in law
schools had been noted even by liberals. Laura Kalman quotes Alan Freeman as stating that he had his first authentic right-wing student in about 1974, and felt sorry for him in
130 his loneliness 43 and alienation.” And, as already stated, conservatives were and have
continued to be deeply concerned with the liberal legal academy, particularly as they
blame it for many of the difficulties they see society as facing today. Judge Bork, at their
first national meeting, stated the position quite succinctly:
The Court responds to the press and law school faculties. The personnel of the media are heavily left-liberal. Their values are quite egalitarian and permissive. Law school faculties tend to have the same politics and values. So if there are new constitutional values 44 they will be the values of that class.
Founded in 1982 by five law students, the Federalist Society attracted the most
important conservative law scholars, 45 judges and lawyers to their national meetings.
Their mission statement explicitly states their goal as reforming the current legal order:
We are committed to the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and the duty of the judiciary to say what the law is, not what it should be. The Society seeks to promote awareness of these principles 46 and to further their application through its activities.
The Society to seeks provide a forum for ‘"legal experts of opposing views to interact
with members of the legal profession, the judiciary, law students, academics, and the
47 architects of public policy.” Today’s Federalist Society has a membership of more than
5,000 law students and 20,000 legal professionals. It holds national symposiums twice a year, and maintains student, lawyer and faculty divisions in addition to 1 5 practice groups
48 in various areas of law. The 145 individual student chapters around the country hold meetings in which featured speakers discuss their views and interact with the students.
The national lawyers conventions, which began in 1986, feature speakers from various parts of the political spectrum, including the leading lights in the conservative movement such as Judge Frank Easterbrook, Edwin Meese, and speakers from “opposing viewpoints” such as Nadine Strossen and Laurence Tribe. Speakers attend the meetings
131 of *e individual practice group and discuss issues directly related to those areas of law.
They also feature plenary panels in which judicial decisionmaking, salient political
issues, and other legal and political issues are debated among panelists from conservative,
right libertarian and liberal positions.
Very shortly, luminaries no less prominent than the President and the Attorney General were speaking at Federalist Society meetings, encouraging the development of
the organization while also airing their political views. By 1985, just three years after the organization was created, Edwin Meese used its meetings as a forum for critiquinz the
U S- Supreme Court Justices. Having recently opened a debate with the justices in which
he said they were engaging in “chameleon jurisprudence, changing color and form in
each era,” Attorney General Meese maintained that “This approach to jurisprudence has
led to some remarkable and tragic 49 consequences.” These speakers also brought support
and encouragement with them. In 1987, President Reagan, speaking at a Society meeting
in Washington DC, told 50 the 500 participants, “Your work is having an impact.” And,
from its inception, the arguments among conservatives have been heated. At this same meeting, Judge Bork suggested that it was too late to turn back New Deal policies. This
suggestion was not well received, and caused him to remark later that “We didn’t used to
51 have things like this.”
Noteworthy is the fact the formation of the Federalists was student led and while
it involved key faculty at the University of Chicago, Yale and Harvard, it was organized
by law students for law students. The national student symposiums were the first meetings the Society held, and continue to be strongly attended today. Speakers here, too, include the biggest names in the business, with Laurence Tribe and other liberal
132 lawyers making appearances on select panels in addition to Judge Posner. Judge
Easterbrook, Richard Epstein, Lino Graglia and various other important conservatives.
As the founding members moved into their professional careers, the Federalist Society expanded. Indeed, the organization appears to have developed into a professional organization as Us founding members developed from law students to key players in the
Washington legal scene. Such former members include Gale Norton, Spencer Abraham
(a founding member) as well as a large number of individuals working in the Justice
Department and former Supreme Court clerks.
The Society is very action-oriented. The practice groups have the continued training of legal professionals at the heart of their activity. The law school debates have the training and development of future lawyers in mind. And, the newest division for faculty has the further development of their ideas and careers as an important goal. Ideas are clearly important to the Federalist Society, but so is the ability to activate those ideas.
That “reform” is a part of their mission statement is noteworthy. It suggests that these conservatives believe that they can activate the theories they develop together and implement them to change the judiciary into what they believe it ought to be - and thereby change the tenor of American politics. The issue, however, is what will this look like? How will the judiciary operate if they are able to implement their ideas?
In the statement quoted above, the Federalists state that it is “emphatically the
duty of the judiciary to say what the law is, not what it should be.” Given the source of
the statement, it would be easy to associate it with the advocacy of original intent. In
making this connection, there is a risk of over-emphasizing originalism as only the
domain of the New Right. As Keith Whittington has pointed out, while originalism is
133 connected to New Right political views, . . because so many of its modem defenders
are also identifiable conservatives. This easy identification has developed in part because of a failure of imagination as to what a truly ‘conservative’ judicial policy might be.
despite the existence of various academic exemplars. A truly conservative approach to
judicial interpretation would focus not only a relatively neutral methodology such as onginahsm but would embrace a more explicitly substantive vision of constitutional
meaning that brought it into iine with conservative policy .” 52 making However, the most
interesting aspect of the Federalist Society is that, because of their desire to brine
together conservatives and right libertarians, there is considerable disagreement within
their membership as to what “the law” is and where to find it. While some conservatives
adhere to some version of original intent and are very concerned with what the Founding
Fathers thought about constitutional matters, right libertarians tend to be much less
concerned with intent and instead ground their theories of legal decisionmaking in
textualism. Richard Posner, who claims to be a pragmatic economic libertarian, and
other advocates of law and economics ground their theories, as has been discussed above,
in theories of efficiency and wealth maximization. Since many conservatives agree in
that the state exists to protect the individual, that the state should be as small as possible
and a free market will lead to free people, it is easy to see these difference as very small
ones. Yet, while this might not seem like a great difference, it can mean a more statist
approach among traditional conservatives that directly conflicts with a right libertarian
anti-statist approach. While these difference are not always fully appreciated, members
of the Federalist Society are well aware of them, and they can become quite heated as issues of authority come into play in determining who understands “the law” the best.
134 Agam we have the search for a foundation to ground lega. interrelation, and the legal realism that conservatives fear is part of the liberalism of the legal academy once again constitutes the polities here. Right libertarians, such as R, chard Epstein, view the
language of the Constitution as the final authority eoneerning what is or is no,
constitutional. However, other conservatives, such as judge Robert Bork, look to original
tntent as their groundwork. 53 The difficulty arises when looking a, language that is
ambiguous. At that point an originalist in the mold of Judge Bork would seek the
guidance of the founders. There is a large literature on original intent. Rather than
reviewing that material, I would like to return to a discussion of Judge Posner’s
jurisprudence and contrast it with Professor Epstein’s. While they both claim to be
libertarians, their perspectives are markedly different. And, since neither one thinks that
the Founding Father’s intentions are particularly important when interpreting
constitutional law, their argument takes on a slightly different caste. Finally, Epstein
began his career within the law and economics movement and has served as an editor of
The Journal Legal Studies. of The two were colleagues at the University of Chicago
School of Law. As exemplars ot the type of legal debates one encounters at the
Federalist Society, they also provide an excellent counterpoint to the view that all
34 conservatives are intentionalists.
Conservative Law and Economics and Textualism
In the 1970’s, Richard Epstein spent a good amount of time concerned with the economic analysis of law in attempting to understand strict liability in tort law. His work eventually led him to critique the concept of utilitarianism as used by Posner and other
135 55 scholars in that vein. This, along with the Dworkin critique, led to Posner’s dtstinction
between philosophical utilitarianism and economic utilitananism that also enabled a separation of “normative” and “positive” theory. At the same time that Epstein was engaging with Posner on these issues, he was working out a property theory and an
interpretation of the Takings Clause of the Fifth Amendment that has become critical to
many of the rights claims made by lawyers in libertarian claims. This work was eventually set out in a full length monograph. Takings: Private Property and the Power
56 ofEminent Domain in 1985.
Epstein s critique of utilitananism and wealth maximization was grounded in his interest in developing a theory of takings that would require compensation by the government for nearly all takings and severely limit eminent domain powers. He views taxation as a form of taking as well as the land use issues and zoning generally associated with this area of law. He argued that utilitarianism when applied to takings issues would bring about “perverse” results because 57 of the “leaps of faith required.” This is largely because a utilitarian analysis would require “perfect knowledge” on the part of the state in order to determine what form of compensation would be required. Thus, he said.
The conclusion here seems odd, if not perverse, because the general assumption is that the eminent domain clause protects only individual rights, leaving to the political branches of government the unique power to decide the utilitarian question of whether to proceed. The conceptual point raises serious questions about the state’s power to initiate programs. Nonetheless, the conclusion seems
inescapable on formal grounds. The only way to compensate net losers is through tax revenues, but these too are takings of private property requiring compensation 58
Epstein sees this perversity as occurring largely because the state cannot be trusted to make the right calculations and protect individual rights. A fervent believer that judges
should be the defenders of individual liberty, he is also a fervent believer that the political
136 branches will always seek to empower themselves (through taxes and takings, for example) at the cost of individual liberty.
The more interesting and perhaps, for this discussion, the more important angle
in Epstein’s argument has to do with the appropriate relationship between the individual and the state. He argued that from a Hobbesian perspective with regard to the state of nature, seeing it as a place where all warred against all in a self-interested contest to obtain the greatest amount of wealth. He said that in this state of nature there were two
major failures: the first was to protect against private aggression; and the second was that
individuals would not voluntarily work to create the centralized power to combat private
9 aggression .' Thus, in a Lockean turn, the state was created to rectify both of these
problems - but this is really the only purpose of the state. Its work is not to redistribute
income or ensure that distributive justice would be done. Instead, said Epstein, anytime
the state acted in a way that, had it been a private individual would have been a private
aggression, the state should be held responsible just as a private individual would be held
responsible. In essence, this was an expansion of tort law such that the state would have
to compensate for any type of public use of private property even as individuals
infringing on the rights of another individual would be required to provide compensation
60 for the action . Ultimately, Epstein’s argument rested on a natural rights theory for its
foundation of legal interpretation.
Posner took exception to much of Epstein’s position, particularly when the
language of rights was introduced. Posner argues in The Problems ofJurisprudence in an
extensive discussion of Epstein’s work that the line between regulation and redistribution
is “too uncertain to support the structure of permissions and prohibitions that Epstein
137 erects on it" Posner went on to explain that there were times when we might see rich people hurting (i.e,. “harm”) poor people and determine that redistribution would be the best form of redress for this situation: “Then redistributive measures would be a method
62 of correcting negative externalities .” But perhaps Judge Posner's most stinging criticism in a community of conservative and libertarian lawyers and academics seeking more democratic jurisprudence is that Epstein’s theory would when taken to its final conclusion prove to be undemocratic:
. . . the approach would encounter the objection that it is anti-democratic, because it greatly curtails the scope of democratic decision making. The people oet to choose the administrators, but not, for the most part, the policies; those are prescribed by libertarian theory. I do not wish to seem misty-eyed about
democracy . . . the precise extent to which the democratic principle should be allowed to prevail over competing political principles is highly contestable ... a pragmatist will demand that the libertarian demonstrate that the risks entailed by such a 63 curtailment are acceptable .
Such a demonstration would, of course, require empirical evidence. And, as we know from our discussions of Dworkin and Malloy, philosophical evidence is not empirical and adds nothing to our understanding of legal interpretation. Finally, Posner rejects
Epstein’s theory because it is impossible to know what is or is not “natural” as an
64 empirical It, is matter. too, a matter of philosophical reasoning .
The disagreement here is over what is truly conservative and what is truly the best form of democratic government. The disagreement turns on an epistemological debate:
how do we know what the law is? Do we find it through philosophical inquiry into
natural rights? Or do we find it through the precise evaluation performed through
objective criteria? Yet, throughout this debate, there is no doubt that either individual is libertarian at heart. Indeed, unlike the strident comments Posner often makes concerning
liberal and progressive legal theorists, with Epstein he is rigorous yet respectful. He
138 introduces his discussion of Epstein with a discussion of his brilliance. Epstein, when he took over The Journal of Legal Studies, wrote a preface to the first volume under his editorship honoring Judge Posner. This is not the sort of discussion he had with
Professor Malloy, despite the parallel critique of "natural rights" and philosophical
reasoning as a basis for determining boundaries on morality and legal interpretation.
Instead, he and Epstein, through their treatment of one another’s work, constitute each
other as conservatives while simultaneously distinguishing their positions from one
another. They are libertarians of different stripes. Epstein is much less likely to accept certain types of regulations and redistributions. Posner, however, suggests that he can see they might be necessary if they maximize a society’s wealth. Whether he really would
find them acceptable is, I think, open to question. But his positions suggest he can conceive of a wide array of possibilities.
Ideology Formation and Academic Safe Havens
In the pages above, I have explored the ways in which conservative legal ideology has been fostered in particular locations in the legal academy. As Christine Harrington explains ideology here “refers to the values and cognitive ideas presupposed in and
65 expressed through struggles over legal practice .” When legal scholars discuss jurisprudential considerations, they are engaging in a form of struggle over legal practice
- how best to interpret. This leads to how best to practice law as a lawyer. Lawyers develop legal theories through their practice, in law firms as well as within the legal
academy. The point, here, is not to argue that academic safe havens are the only places
for conservatives to develop their legal theories, or even that all contemporary
139 conservative legal ideology owes its origins to these spaces. Nor is this a causal argument - these places have not caused changes in the legal landscape more generally.
Rather, I attempted to demonstrate that in these sites, like the other sites discussed in this dissertation, an activity of conservative legal scholars, lawyers and judges has enabled ideology construction through engaged debate not only with other conservatives but also with liberals and more progressive thinkers. The professional competition that is engendered in these spaces provides conservatives with a place to work out their critiques of legal realism. But just as ideologies in other parts of legal practice compete with one another and fold into each other, we find another ideology operating here. Legal realism
a vital remains part of these spaces. When conservatives seek a place to ground their interpretive theories, it is a reaction against the prevalent notion that judges make decisions based upon their policy preferences.
In the case of the law and economics movement, the scholars associated with it have been active in the legal academy for several decades. While they do not have the organizational structure and means of implementing ideas that the Federalist Society has developed, the prolific writing and research they engage in enables their presence on the legal scene and in broader society. Not too long ago, Judge Posner was featured in The
New Yorker. The author of the piece, Larissa MacFarquhar, titled her piece “The Bench
Burner,” with the question, “How did a judge with such subversive ideas become a
66 leading influence on American legal opinions?” One should question how a leading conservative could also be a subversive. The article focuses on many of the more outlandish moments in Judge Posner’s writings. Yet, the answer to the question is most likely that he attempts to subvert legal liberalism and its parent, legal realism. These,
140 accepted by many as the dominant ideology of the legal profession, are the hegemon that Posner’s ideas subverts. The same is true of other conservatives.
Similarly, the overtly reformist agenda of the Federalist Society demonstrates
their engagement with legal realism. Thus, the shape of conservative ideology is constituted in part through their engagement of legal realism. Exploring and condemning
the ways in which law is politicized in the U.S. provides them with an energy that
translates into activism on behalf of various causes, including and far from least
important, protection of property. Through this activity they do in fact recreate the very
ideology they seek to subvert. Yet, simultaneously, their engagement enables the
constitution of their particular legal ideology. In this way, their jurisprudential
disagreements, as an activity lawyers in and out of the academy engage in, is part of legal
practice. We can see the social and political construction of law in these engagements.
1 Laura Kalman, The Strange Career ofLegal Liberalism (New Haven' Yale Universitv Press, 1996), pp. 77-78.
‘ The ABA Journal, published an interesting article documenting the founding of the Federalist Society in September 2001. See Terry Carter, “The In Crowd: Conservatives Who Sought Refuge in the Federalist Society Gained Clout,” The ABA Journal (September 2001): 46-51.
Kalman, The Strange Career p. 79. Also, , Gary Minda, “The Law and Economics,” in Postmodern Legal Movements: Law and Jurisprudence at Century ’s End (New York: New York University Press, 1995), p. 83.
4 Calabresi was the Dean of Yale Law School, and now serves as a judge for the U.S. nd Court of Appeals, 2 Circuit. He is the uncle of Stephen Calabresi, one of the founders of the Federalist Society.
5 Harrington, "Outlining a Theory of Practice," p. 61
6 Ibid.
7 Minda refers to these scholars as the second generation of law and economics, and explains that they are sometimes referred to as the Reformist School or the New Haven
141 2
School, indicating both their political goals and that Yale was an important place for then ormation. Such scholars include Susan Rose-Ackerman, Roberta Romano, Robert E Scott and Robin Paul Malloy. See, Minda, "The Law and Economics Movement " pp 95-101, especially footnotes 53-78 for literature discussing the differences between the first generation and second generation of law and economics scholarship.
According to Minda, in law, the movement dates to the 1960’s with the most innovative work in the last two decades; in economics, the literature is older, dating at least to the 1950’s, with some work still earlier. See, "The Law and Economics Movement " pp 83-
9 Robert H. Coase, “The Problem of Social Cost,” Journal ofLaw and Economics 3 (1960): 1-44 and Guido Calabresi, “Some Thoughts on Risk Distribution and the Law of Torts,” 70 Yale Law Journal (1961): 499-528.
10 Unlike the Journal ofLaw and Economics which , focuses exclusively on research in the various permutations of law and economics, the Journal ofLegal Studies has a broader mission, and instead describes itself as a forum for interdisciplinary scientific research on legal theory.
11 Minda, "The Law and Economics Movement," p. 83.
1 Kalman, The Strange Career , p. 79, and Minda, "The Law and Economics Movement," p. 83.
lj Kalman, The Strange Career citing , p. 79, Posner’s comments in “the Uses and Abuses of Economics in Law,” University of Chicago Law Review 46 (1979): 281, 285-287.
14
Kalman, The Strange Career , p. 79
15 See for example Posner’s The Problems ofJurisprudence (Cambridge: Harvard University Press, paperback edition, 1993), especially pgs. 352-392.
16 “Volume One of The Journal ofLegal Studies - an Afterward,” The Journal ofLegal
Studies 1, no. 2 (1972): 437.
17 Posner, “Afterward,” pp. 437-438.
18 Posner, "Afterward," pp. 438-439.
19 Richard A. Posner, “Against Constitutional Theory,” 73 New York University Law
Review 73, no. 1 (1998): 1-22. This was a Madison Lecture given at New York University in 1998. Posner says he would like to see constitutional theory, “set itself the - difficult - although, from the perspective of today's theorists, the intellectually modest task of exploring the operation and consequences of constitutionalism” (p. 11). He then
goes on to list a few scholars who have addressed these issues, including Gerald N.
Rosenberg, Donald J. Boudreaux & A.C. Pritchard, Isaac Ehrlich & George D. Brower
142 (see note 32 in his text). Any well trained political scientist who studies law and conns or law and society will, however, be able to add a significant number of cites to Jud«e Posner s list while also expanding his list of potentially fruitful research questions with ones that have already been asked and are being asked.
20 Cambridge: Harvard University Press, 1971.
21 Coase, "The Problem of Social Cost."
22 Ronald Dworkin, Taking Rights Seriously, p. 97.
2j Dworkin, Taking Rights Seriously, p. 97.
24 Ibid.
25 Ibid., p. 98. Dworkin rests much of his discussion on a distinction between abstract rights (rights in principle) and concrete rights. He argues that Posner does not make the distinction, but when discussing judging it is a distinction with strong analytical importance for understanding the rhetoric around the actual opinion.
26 Ibid., p. 99
27 Ibid.
28 Calabresi, Guido “A Letter to Ronald Dworkin,” Hofstra Law Review 8, no. 3 (Spring 1980): 558
90 ' Richard Posner, “Utilitarianism, Economics and Legal Theory,” 8 The Journal ofLegal
Studies 8, no. 1 (January 1979): 103-140, especially, pp. 105-106
30 Ibid., p. 110
31 Richard Posner, The Problem With Jurisprudence-, see especially the discussion in the introduction, pp. 16-23.
32 Ibid., p. 250.
Edited by Robin Paul Malloy and Jerry Evensky (Boston: Kluwer Academic Publishers, 1994). See especially pp. 153-197
34 Malloy, "Law and Economics is Moral," in Adam Smith and the Philosophy ofLom> and Economics, p. 153.
35 Ibid., p. 157. Italics are Malloy’s.
36 Ibid., p. 157.
143 38 Ibid. j9 Ibid., p. 160.
40 Ibid., p. 167.
In a rebuttal response, Malloy suggests something very much like this when he says that one reason Posner’s law and economics has been successful is because it “allows one to ignore the inherent moral choices being made” ("Rebuttal to Posner" in Adam Smith and the Philosophy ofLaw and Economics, p. 183). This is reminiscent of Dworkin’s position regarding the way in which judges will dress their choices in the language of economics. In both cases, the authors are pointing to the relationship between the language employed to make an argument and the principles or ethical considerations underlying the choices. Dworkin and Malloy are not quite on the same page here as Dworkin’s principles and Malloy’s morality seem somewhat different.
42 Terry Carter, “The In Crowd: Conservatives Who Sought Refuge in the Federalist Society Gain Cout,” The American Bar Association Journal (September 2001): 47.
43 Kalman, The Strange Career , note 39, p. 77.
44 Quoted in Associated Press, “Federal Judge Assails Supreme Court Ruling,” The New
York Times , April 27, 1982, section A, p. 17.
4 ' Additional details are included in the chapter on the judicial selection process in this dissertation.
46 “Our Background,” downloaded from the web page of the Federalist Society at www.fed-soc.org, downloaded 10/30/2001.
47 Ibid.
48 Those practice groups include areas of law such as administrative law and regulation; professional responsibility; intellectual property; financial service and e-commerce; international and national security law; labor and employment law.
49 Philip Shenon, “Meese Says Some Judges Practice ‘Chameleon Jurisprudence’,” The New York Times November 16, 1985, Section page 11. , 1,
30 Jr., “Conservatives Assert Legal Presence,” The New York Times Stuart Taylor, ,
February 1, 1987, Section 1, page 18.
51 Ibid.
144 —- 52 . Keith E. Whittington, Constitutional Interpretation: Textual Cfpnnino n i and Judicial Review (Laurence: University Press of Kansas, 1999), p . f6 7. Keith E. Whittington, Constitutional Interpretation, p. 167. Whittington describes three such exemplars: Richard Epstein, Richard Posner and Hadlev Arkls I nH edh to agree with Whittington’s analysis here and would like to surest that the u sa,d ,o be .rue for liberal or progressive jurisprudent^ happen .s related to the apolitical politics described in the judtciai selection chapter Professor Whittington s views were recently cited with approbation by Randy Boston Barnet of University School of Law at the 2002 National Student Symposium of the Federalist Society. At the meeting, he was the only political scientist discussed and was with explicit it reference to his work on originalism.
54 With regard to tensions between intentionalism and textualism, I have discussed this in relation to the choice ofjudges in the chapter on judicial selection.
See Richard A. Epstein, ’‘Nuisance Law: Corrective Justice and Its Utilitarian Constraints, Journal ofLegal Studies 8 (1979): 49-74; and, “Book Review: The Next Generation of Legal Scholarship?’ Stanford Law Review 30 (1978): 635-674
56 Cambridge: Harvard University Press, 1985.
57 Epstein, Takings, p. 200.
58 Epstein, Takings, p. 200.
59 Epstein, Takings, p. 5
60 Ibid.
61 Posner, The Problems ofJurisprudence, p. 344.
62 Ibid., p. 344.
63 Ibid., p. 345.
64 Ibid.
6 ~ Harrington, "Outlining a Theory of Practice," p. 62
66 The New Yorker (December 10, 2001): 78-89.
145 CHAPTER 6
CONCLUSION
Summing I Ip
The research here draws heavily for its rheoretrcal inspiration from work done in sociolegal studres on the production oflegal ideology. In each chapter, the connection between ideas and actions shape the discussion. In the chapter on the development of conservative public interest law, we see that ideas developed in the late nineteenth century provide inspiration and serve as an ideological resource for conservative activist lawyers in the late twentieth century. Similarly, with regards to grassroots mobilization, an ideology in American culture known as pastoralism enables the constitution of property ideology concerning the relationships humans have with nature and private property rights. In the final two chapters, the importance of competition within the legal profession in the sites of the legal academy and during the judicial selection process serve to provide conservatives with means of distinguishing their ideas from each other as well as from liberal legal ideology.
Then notion of ideology used here has a long history. Judith Shklar utilized it when she wrote about legalism in 1964. She explained it as referring to policy preferences, distinguishing it from other forms if ideology that attempted to explain far more than what is meant either in her own work or in my own. As she explained:
Ideology, thus conceived, is eminently a matter of attitudes common to groups of people. It is the sort of preference that arises in the course of common social
experiences. In the present case, legalism as a political ideology finds it strongest adherents in a professional group, the lawyers. 1
Like Shklar, this work is not intended to de-ideologize, or provide an “objective” account
in order to delegitimize the ideologies I investigate. Rather, it provides an account of
146 how those ideologies are formed, and the way in which they compete with one another in
the discourse of conservative legal activism. And, I have attempted to present
conservative legal ideology as anything but a coherent, monolithic ideology. Rather, as Christine Harrington explains, “There are multiple legal ideolog.es (formalism and mformalism) which co-exist in liberal societies and among different types of
organizational settings (hierarchical and 2 participatory)” Taking my queue from
Professor Harrington, I attempt to indicate how conservative legal ideology has risen,
taken root in broader culture, and intermingled with legal realism. Simultaneously. I
have shown that while the legal activists working to construct conservative legal ideology
have attempted to counter the consequences they believe come form legal realism, legal
realism has served as a resource for them in their work. Thus, as Theda Skocpol
suggests, the idioms available to various groups, influence “the very definitions of
3 groups, their interests, and their relations to one another.”
Using this framework, my work here has focused on the language and settings in
which conservatives are working to create the legal change they desire, and thereby
constitute and reconstitute legal ideology. This study is far from exhaustive. Indeed,
each chapter could be a case study in itself. However, the paucity of scholarship on
conservative legal activism suggested a more comprehensive approach stressing breadth
rather than depth was in order in order to grasp the various components of conservative
legal activism. Future research, however, could extend this analysis into other realms as well as deepening the descriptions provided in the various case studies here. In the next
section, I suggest some avenues for such research.
147 Future Direction*
One po.entia.ly fruitful area of research no. ye. discussed in this dissertation has to do with transnational processes and the destre to take liberal property law overseas As global,za, ion is dtscussed by scholars, the need to understand how domestic actors, such as the legal activtsts investigated here, are shaping transnational legal processes would add to the literature on globalization while also drawing attention to the way in which international and transnational legal discourse may shape domestic legal ideology.
Already a literature on a similar theme has emerged in American Political Development, spearheaded by authors such as Philip Klinkner and Rogers Smith, as well as Mary
Dudziak that places civil rights in a transnational 4 framework . Such work attempts to
understand how domestic politics was affected by international conflicts.
However, with regard to transnational issues and lawyers, the importance of
international conflict recedes ,n the face of increasing legalization. One issue that needs
to be studied more carefully is what role lawyers - particularly American lawyers - are
playing in this process. Of particular concent is the role lawyers are playing in bringing
American constitutional ideas into developing democracies. Not only do we need a better
map of who is doing what, but understanding the impact of these activities would enrich various literatures in political science and the sociology of law. Agreements, such as the
North American Free Trade Agreement and the litigation around implementation of some ol its provisions has the distinctive mark of the jurisprudence of many of the conservatives under study here.
Important provisions in NAFTA regarding the relationships of investors to states enable investors from one NAFTA signatory to sue the government of another if a
148 Future Directions
One potentially fruitful area of research not yet discussed in this dissertation has to do with transnational processes and the desire to take liberal property law overseas. As globalization is discussed by scholars, the need to understand how domestic actors, such as the legal activists investigated here, are shaping transnational legal processes would add to the literature on globalization while also drawing attention to the way in which international and transnational legal discourse may shape domestic legal ideology.
Already a literature on a similar theme has emerged in American Political Development, spearheaded by authors such as Philip Klinkner and Rogers Smith, as well as Mary
Dudziak that places civil rights in a transnational 4 framework . Such work attempts to understand how domestic politics was affected by international conflicts.
However, with regard to transnational issues and lawyers, the importance of international conflict recedes in the face of increasing legalization. One issue that needs to be studied more carefully is what role lawyers - particularly American lawyers - are playing in this process. Of particular concern is the role lawyers are playing in bringing
American constitutional ideas into developing democracies. Not only do we need a better map of who is doing what, but understanding the impact of these activities would enrich various literatures in political science and the sociology of law. Agreements, such as the
North American Free Trade Agreement and the litigation around implementation of some
of its provisions has the distinctive mark of the jurisprudence of many of the conservatives under study here.
Important provisions in NAFTA regarding the relationships of investors to states enable investors from one NAFTA signatory to sue the government of another if a
148 regulation interferes with the profitability of their bustnesses .» Of parttcular importance
for this project is NAFTA’s Chapter 1 1, Article 1,10. whtch defines when compensation will be required should expropriation of an investment occur within the territory of one of the parties to the agreement. The article requires compensation when either direct or
indirect nationalization or expropriation occurs and requires compensation at the fair
market value of the investment at the time immediately preceding the action. This mechanism differs from the dispute resolution process outlined in Chapter 20 of the agreement that enables states to initiate claims on behalf of investors, instead. Chapter
1 1 allows investors to make their own claims without representation by their government during the dispute resolution process. Under both dispute processes, the claims are taken into arbitration and not taken into the court systems of the member states. As set out in
Chapter 1 1 , this process includes a three-member board that determines whether the claims 6 are valid and the amount of compensation to be awarded.
In a case that recently received some publicity, a Canadian corporation,
Methanex, filed a suit under Chapter 11, alleging that a California State environmental regulation damaged their profitability and that this amounted to expropriation compensable 7 under Article 1 1 10. The claim of the corporation appears to rest on the concept that curtailment of profits is equivalent to an expropriation of property.
Domestic property rights advocates, who argue that any loss in economic viability should be compensated if it occurs as a result of a governmental regulation implemented on
8 behalf of the public good have explicated the logic underlying this claim. While U.S.
Supreme Court jurisprudence has moved in this direction in recent years, many property
149 1
rights lawyers have voiced their unease with the reluctance of the high court to fully embrace the strongest libertarian version of this theory.
One of the more important cases, according to property rights advocates, was
Nollan v. California Coastal Commission, in which the Supreme Court announced that economic viability could be a factor in determining when a taking had occurred, though it did not create a coherent test for determining how much and what type of compensation was required under these circumstances. Later cases, including Lucas v. South Carolina
Coastal Council and Dolan v. City of Tigard both provided some elaboration. However, many conservatives do not believe the Court has gone far enough, and have argued that private property owners should be compensated when the government acts in such a way that profitability is upset just as individuals could be sued if their actions infringed upon
9 the private property rights of others .
That NAFTA's investor protections are now being used by lawyers in such a way as to create this version of property protection is remarkable and has come as a bit of a surprise to commentators, including many environmentalists who hailed NAFTA's
10 environmental provisions as some of the soundest in international trade agreements .
Environmentalists had been extremely concerned during the negotiation process that the environmental regulations in the U.S., Canada and Mexico would be curtailed by the agreement, and were hoping that provisions in NAFTA would work not only to keep
1 those regulations in place but also, if at all possible, extend them . Given that NAFTA is a trade agreement and trade and the environmental concerns are often in conflict, the
agreement is remarkable in providing protections to the environment in various ways.
the enforcement of And, it may be that due to these various environmental provisions and
150 environmental protections within the states that lawyers working on behalf of corporations have turned to the broad language of Chapter 1 1 in order to advance their client’s interests against environmental regulations. As Yves Dezalay has pointed out. the lawyers working in transnational settings have learned to shop in various locations in order to find the place where their clients interests may best be addressed with a
12 favorable outcome. To borrow his language, Chapter 1 1 has become an “area of strategic combat” in which the expertise of lawyers is in demand “whether to circumvent
13 existing devices or to build new ones.” Indeed, the import of these disputes cannot be underestimated, and because of them public interest groups in the United States and
Canada, as well as the Canadian government, have requested that Chapter 1 1 be reopened
14 for negotiation.
As in my previous work, the importance of clashes between environmental regulation and private property will be paramount because environmental regulations
often reshape property relations in ways private property advocates find deeply
objectionable. We have known this was the case domestically for quite sometime, and
movements such as the property rights movement and the Wise Use Movement have
1 been under analysis by various scholars. '^ While lacking analytical bite, the broader
term, “Green Backlash”, is often used to capture all of these various activities under one
term. These movements, found principally in the western United States but with some
strong support in other parts of the country, have among their adherents some of the most
important conservative lawyers in the country. They also have a great deal of sympathy
from various important conservative actors on the broader political landscape, including
16 the current President, Vice President and several of his advisors. Quite importantly, the
151 understandings of “takings” and theories of statutory interpretation advocated by many of these actors as a means of limiting environmental regulation is supported by U.S.
Supreme Court Justices Antonin Sealia and Clarence Thomas, and has a strong affinity
* nter retive P Practices of Chief Justice Rehnquis,. Much of this has been documented
in my own research as well as through the 17 work of various other scholars.
The claims made under Chapter 1 1 of NAFTA are strikingly similar to claims
made by property rights advocates in "regulatory takings" 18 cases. In these cases, pnvate property owners claim regulations promulgated by government have infringed upon the economic viability of their property, and thus, though a physical taking has generally not
occurred, a taking compensable under the Fifth Amendment's Takings Clause has. The
U.S. Supreme Court, while not accepting the strongest form of these claims, has
increasingly shifted Takings doctrine to broaden the rights of private property owners.
Many of these cases, including the most recent, Pallazzolo v. Rhode Island , have either
been test cases brought before the U.S. Supreme Court by various conservative public
interest groups, or there has been strong support of property owners by various actors
19 within the property rights movement. That disputes over investor's rights in NAFTA
parallel some of the claims made by property rights advocates is striking and raises an
important question: is there a connection between property rights advocates and either the
structure of or the 20 NAFTA claims made by investors under Chapter 1 1?
That domestic property rights activists have been involved in debates around the
importance of international free trade agreements has not been a part of most empirical analyses of the property rights movement in the U.S., though the importance of corporate interests in trade law has been analyzed within international relations as well as among
152 scholars interested in interest group activity and presidential influence on policymaking in Congress. Yet, explicitly linking these actors and understanding their activities as part of a larger neo-liberal movement needs to be investigated in order to understand the complicated relationship free market liberalism is developing within and among various levels of government and society. There are some indicators that during the ratification process of NAFTA, free trade advocates, some of whom are also tied to the Wise Use
Movement and other pro-property political activities, provided testimony regarding the importance of free trade. While my research on this is very preliminary and results are merely suggestive at this point, groups such as the American Farm Bureau Federation, state Farm Bureau Federations as well as corporate interests testified before various subcommittees regarding the importance of NAFTA both while the treaty was under
22 consideration in Congress, and then later when it was under review. Many of these organizations and corporations have worked to advance the goals of the property rights movement. At least one edited volume discussing NAFTA, the environment, and coining
the term "eco-capitalism", was produced in 1997 with direct ties through its various
2 authors and funding source to the Wise Use Movement. ^ A much stronger empirical basis is required before conclusions concerning these linkages can be drawn. However, the evidence of their presence before Congress, as well as the similarities in the claims
made on their behalf and the claims made in international arbitration on Chapter 1 1 are strong enough to merit a closer examination. And the most obvious place to begin an inquiry into the shape and transferal of rights claims seems to be within the legal profession, where legal theory and rights claims are created through inter-professional
24 competition.
153 Research to date on NAFTA tends to be concerned either with an analysis of
international actors or an analysis of domestic actors. Undoubtedly, this is in part
because the unit of analysis has been restricted to one arena or another. This has
followed a tradition within international relations and comparative politics in which the
unit of analyses most often studied by scholars are the subnational, the state or the
international. However, as the importance of transnational actors has emerged in understanding the ways in which nations relate to one another, the importance of shifting away from traditional units of analysis has also become 25 apparent . Moreover, recent sociolegal work has suggested that lawyers trained in domestic law are important in transnational disputes in part because their expertise allows them to move between various forums, 26 depending upon what is strategically best for their client . The project I am proposing will seek to understand the politics of NAFTA’s provisions protecting investor’s profits as constituted by intersecting domestic and national politics, thus highlighting some of the politics that are left out of studies when the unit of analysis is left merely at the international level, while also attending to the important connection between the domestic and international spheres.
A second area in transnational issues that would make an interesting case study involves the work American lawyers and legal academics do in developing and new democratized countries. One of the most important and frequently discussed cases
among conservative legal activists is Russia. Because of its communist past and the challenges that posed to the understandings of property and liberty conservatives and right libertarians hold dear, Russia was and remains an interest to them. Much recent scholarship in Eastern European studies has been devoted to debates around privatization
154 and the development of property rights in postcommunist Russia. Most of this work is driven by an assumption made in liberal economic theory that individually owned private property (largely a liberal construct) is a prerequisite to democratic government. Even scholars who promote the creation of strong states that run contrary to liberal democratic theory seem to make the same assumptions about the best way a market is to be structured. However, these conjectures may be detrimental to Russia’s prospects because of the type of property and ownership being advocated. Deep democracy may require property to secure it, but it is by no means clear what should count as property in a true democracy. Even more importantly, the creation of property and its distribution to a propertyless class may not be possible where new institutional practices continue to mime old practices.
The relationship between economic reform and democratic institutions remains contested in the literature on the Russian transition to democracy. Scholars including
Juan Linz and Alfred Stepan argue that reformers invert the relationship between economic reform and the development of strong institutions when they assume that a
27 market economy will legitimize democratic institutions . Their comparative study of
postcommunist countries suggests that structural economic change is done best when performed by a strong state (at least in terms of the state’s capacity to act). They point out that strong non-democratic states can implement economic reforms such as privatization more effectively than weak states and argue that until the Russian state has
been reconstructed, it will not be able to truly privatize its industries or implement land
25 institutions must have priority over reform . Thus, they argue that building strong economic restructuring.
155 Still other scholars have warned that poor economic performance can seriously erode the democratization process, possibly even bringing about the return of communism. Steven Fish has argued that failed economic reforms may aggravate popular dissatisfaction by forcing governments to adopt harsh policies, possibly
29 undermining coalitions and alienating social groups . Fish points to returns to authoritarianism in Latin America as examples of democratization derailed by declining economies or accelerating inflation. However, Linz and Stepan have pointed out that in post-communist countries where the communists have “returned” but where free, democratic elections continue to occur, it is inaccurate to view the election of communists as a rejection of the new democratic regime. Instead, they argue that as long as reformed communist-led coalitions accept the democratic “rules of the game” (i.e., they run free and fair elections and contest the results according to the electoral laws of the country) and their opposition accept them as the legitimate leaders by their opposition, the regime has not actually changed. Rather, a different coalition has simply
30 come to power within the new democracy .
Yet, with all the discussions about the relationship between economic structure
and democratic institutions, it is easy to forget the theoretical underpinnings for the liberal belief in the importance of private property. Ownership for these and other
scholars advocating economic liberalism is seen as a mechanism for providing a distribution of wealth that can allow citizens to resist the tyranny of government, thereby
31 promoting greater liberty . But also, as Judith Kullberg and William Zimmerman point out, the market economy advanced in the literature is designed to facilitate a competitive exchange of goods. This exchange is, theoretically, supposed to take place within a
156 structure of economic rights, particularly 32 property rights. The difficulty in Russia, however, is that the majority of people have never had any type of property right in their history. Compounding the cultural dilemma, the little savings and incomes they built up were drastically reduced during the period of shock therapy in the early 1990’s. Thus, their ability to participate in exchanges is severely limited both in terms of cultural awareness of how a market should work as well as in the amount of resources available to them. This, in turn, restricts the growth of the private sector in Russia. All of this, according to the neoliberal argument, makes democratization a very slow process indeed.
When activists and reformers advocating a liberal form of democracy argue for the importance of privatization to the legitimation of democratic institutions, they are making assumptions concerning the importance of a particular type of property rights which are generally not fleshed out in the heat of empirical debate over the events and implications of reform in Russia. These rights are highly individualistic, and very novel in a culture that has a history made up of collectivities, first of serfdom and then of communism. But, if we are to understand how the communist legacy effects the process of structural economic transformation and create realistic and productive policy recommendations, recognizing the foundations of our beliefs as well as the cultural make-up of the area of reform are necessary prerequisites. If these underlying ideas misconstrue the situation in Russia, then liberal democratic reformers and activists may be guilty of the “illiberal liberalism” Linz and Stepan suggest and may indeed be promoting private property rights and economic transformation at the cost of other
33 possibilities. As Karl Klare, a noted American legal theorist, has said regarding postcommunist property reform:
157 e Blackstonian image of property - as a relationship of absolute and exclusive dominion exercised by a unitary owner over an item of wealth - exercises such power in our legal culture that it is often difficult to imagine other conceptions 34 of property' that might be more desirable.
Scholars of private property have argued that property relations can be structured to facilitate the education of the citizenry in democratic practices as well as enable the average citizen to enjoy some degree of personal well being. Such scholars, often drawing on ideas of the public found in another, related, tradition in political thought,
su e st that restructuring the relationship gg between the state and the individual is best
done through an understanding of property as it has evolved in many western states.
3 including the United States. ' Such property relations include entitlements provided by
the state. These arguments provide a foundation for other options in creating property
rights in Russia, options that make more sense in light of its political culture. Before
turning to a more detailed discussion of these possibilities, it is best to understand what
has happened in Russia in the aftermath of the reform programs promoted by economic
liberals.
In late 1992, the Yeltsin government approved a privatization plan to transfer
formerly state owned property to private individuals. In this narodnaia privatizatsiia, or
“people’s privatization,” the principle mechanism for achieving the transfer was a system
in which vouchers (i.e., investment checks) were issued to all citizens who were
permanent residents of Russia. The as initially proposed by Larisa Piiasheva in 1990
transferred enterprises only to employees who worked in them rather than to the citizenry
36 at large. However, this idea met with considerable criticism because many believed it
gave the state too much control in deciding where property would go. One Russian
158 lawyer suggest this could result in a repetition “of the October slogan ‘steal wha, was stolen,”’ and thus result in the concentration of property among a privileged few.”
Several scholars have described the plan and its aftermath, with Htlary Appel providing an exceptionally clear » account Appel reports that while incorporating some
worker pnv, leges into their program mcluding the nearly free transfer of shares to employees, the vouchers became the principle and most saltern mechanism in the program.” The reformers emphasized the mass transfers in the hopes of gaining
widespread support for the growth of the prtva.e sector as well as the privatization plan
itself. It was believed that in a post-communist Russia, the sale of property to only those
individuals having the means to purchase it would result in the concentration of
ownership among elites within industry, the former nomenklatura40 41 and the mafia . That
American economists from Yale University and American lawyers sent by the American
Bar Association were on the ground during the reforms is indisputable. However, who
those lawyers and economists were and how their particular understandings of the
situation in Russia requires much more investigation in order to truly understand what
occurred there.
Law, Politics and Understanding Conservatives
Fifteen years ago, political scientists Lee Epstein and Karen O'Connor studied conservative litigation strategies. Together, they described and analyzed the use of
42 amicus briefs by conservatives . Professor Epstein's book, Conservatives in Court , remains the departure point in political science for discussions of early conservative
43 public interest groups . Written before the Institute for Justice and other groups were
159 formed. Professor Epstein focused largely upon conservative public interest law as the
Pacific Legal Foundatron and the Mountmn States Legal Foundation developed it. Given the developments that have occurred over the course of the last fifteen years and the importance of distinctions within the right-oriented movements regarding proper judicial
role and interpretative techniques, my work seeks to update and extend the analyses that
were offered when conservative public interest law was nascent.
Private property remains at the heart of the development of conservative legal
ideology in the United States. This is not necessarily the case in other parts of the world,
but as globalization the growth of free markets engulfs the world, private property as an
ideology and the sites of its formation become increasingly important to understand. The
various sites identified in this work are important to the formation of the ideology. But
they should not be surprising choices: we have had a long tradition of grassroots mobilization, legal activism by lawyers at various stages in our history, as well as a long tradition of ideas taking form in the legal academy. In a sense, this work triangulates on the production of legal ideology - rather than looking at one dimension, I have attempted to provide perspectives on a few critical places in order to generate a description that
provides the reader with a sense of the facets and the mechanisms of property rights in the U.S.
1 Judith Shklar, Legalism (Cambridge: Harvard University Press, 1964), p. 63.
9 . . • Christine B. Harrington, “Outlining a Theory of Practice,” in Lawyers in a Postmodern
World: Translation and Transgression , eds. Maureen Cain and Christine B. Harrington (New York: New York University Press, 1994).
160 Theda Skocpol “Cultural Idioms and Political Ideologies in the Revolutionary S“e Power: A R ^0”der to Sewell? Journal ofMod (1985).“r;"°91. on 57 Cited in Harrington, "Outlining a Theory of Practice." p. 60. 4 Phihp Klinkner and Rogers Smith, The Unsteady March: The Rise and Decline Racial Equality of in America (Chicago: The University of Chicago Press 1 QQQV Dudziak, Cold War CMl Rights: Race and the lmal ofAwTa^o^ ^ (Princeton: Princeton University Press, 2000). NA A’ Chapter 11 , Section A, especially Article , U 1 1 1 0. The following discussion draws heavily from Frederick M. Abbott, "NAFTA and the Legalization of World Politics. A Case Study, International Organization 54, no. 3. p. 519
6 As laid out in NAFTA, Chapter 1 1 , Section B and Chapter 20. This process is typical of international agreements. See Yves Dezalay and Bryant Garth, Dealing in Virtue: nternational Commercial Arbitration and the Construction ofa Transnational Legal Order (Chicago and London: The University of Chicago Press, 1995) for further discussion.
This case was discussed extensively in The Nation, and analyzed as part of a neo-liberal movement with strong ties to Richard Epstein at the University of Chicago. See. William Greider, “The Right and U.S. th Trade Law: Invalidating the 20 Century,” The Nation October 15, 2001, on-line edition, www.thenation.com.
8 See Richard A. Epstein, Takings: Private Power and the Power ofEminent Domain (Cambridge: Harvard University Press, 1985) and Nancie Marzulla, "Property Rights Movement: It How Began and Where It Is Headed," eds. Nicholas Blomley, David Delaney and Richard T. Ford, The Legal Geographies Reader, (Oxford: Blackwell Publishers, 2001), pp. 237-250. Nancie Marzulla is a lawyer working with Defenders of Private Property, one of the conservative public interest law firms involved with the property rights movements, and is currently one of President George W. Bush’s advisors on energy policy.
9 v. Nollan California Coastal Commission (483 U.S. 825, 1987); Lucas v. South
Carolina Coastal Council (505 U.S. 647, 1992); Dolan v. City of Tigard (5 12 U.S. 374, 1 994). For criticism of Supreme Court jurisprudence in these and other regulatory takings cases, see for example Marzulla, "Property Rights Movement," as well as the interview with Richard Epstein reported in The Nation by William Greider, "The Right th and U.S. Trade Law: Invalidating the 20 Century," The Nation (October 15, 2001), on- line edition at www.thenation.com. Greider quotes Epstein as criticizing Justice Scalia for his concerns regarding the judicial power should the libertarian version of property rights be fully accepted in Supreme Court doctrine. “Scalia is terribly worried, as I’m not, about what will happen to the federal judicial power if he adopts the kinds of cases I’m championing - that local zoning cases would be subject to federal scrutiny ... So he’s nervous about a sea change. He looks for ways to change the doctrine on the
161 2 ,
margins, but he doesn’t want to go all the ” way . . . Epstein is often given credit for developing the theory stated here to its fullest extent in his book, Takings.
See Pierre Marc Johnson and Andre Beaulieu, The Environment and NAFTA: Understanding and Implementing the New Continental Lem’ (Washington, DC: Island Press, 1996); and Annette Baker Fox, "Environment and Trade: The NAFTA Case," Political Science Quarterly 110, no. 1 (1995): 49.
1 Professional Competition and Professional Power: Lawyers, Accountants and the Social Construction ofMarkets eds. Yves Dezalay and David Sugarman (London and New York: Routledge Press, 1995).
13 Ibid., p. 5 and p. 2, respectively.
14 Frederick M. Abbott, "NAFTA and Legalization of World Politics: A Case Study," International Organization 54, no. 3 (2000): 519.
15 Lands in the American West: Private Claims and the Public Good, eds. William G. Robbins and James C. Foster (Seattle: University of Washington Press, 2000); Who Ch\ ns America? Social Conflict Over Property Rights, ed. Harvey M. Jacobs (Madison: The University of Wisconsin Press, 1998); David Helvarg, The War Against the Greens: The 'Wise-Use' Movement, the New Right, and Anti-Environmental Violence (San Francisco: Sierra Club Books, 1994).
16 This list can extend back to the presidency of Ronald Reagan, in which former Attorney General Edwin Meese, a long time supporter of the Pacific Legal Foundation
and its pro-property politics, as well as former Secretary of State James Baker, played key roles in both the administration and property rights politics.
17 Richard Brisbin, Justice Antonin Scalia and the Conservative Revival (Baltimore: John Hopkins University Press, 1997); David A. Schultz and Christopher E. Smith, The Jurisprudential Vision ofJustice Antonin Scalia (Lanham: Rowman and Littlefield Publishers, 1996); Christopher E. Smith, Justice Antonin Scalia and the Supreme Court's Conservative Moment (Westport: Praeger, 1993); David T. Kendall and Charles P. Lord, "The Takings Project: A Critical Analysis and Assessment of the Progress So Far," Environmental Affairs 25, (1997): 509; and Jacobs, Who Owns America?
18 Nollan Before the U.S. Supreme Court, two of the most important such cases include, Dolan v. City Tigard (512 v. California Coastal Commission (483 U.S. 825, 1987), of U.S. 606). U.S. 374, 1994) and quite recently, Pallazolo v. Rhode Island (533
19 sponsored by the Pacific Legal Pallazolo v. Rhode Island (533 U.S. 606) was Wetlands Curbs,’' The Foundation. See Carey Goldberg, “A Property Rights Case Tests New York Times, February 17, 2001, Section A, page 14.
162 — ’ 20 " The Nation by William Greider cited above claims that the ideas of the property rights movement activists have been earned by various lawyers within elite circles. I am inclined to agree, however, the movement of thought among vanous actors and levels of society is difficult to trace. My dissertation argues that lawyers are the key links between the property rights movement and corporations, and suggests that, at least among conservative legal activists in the current period, the legal academy and organizations such as the Federalist Society, are key sites for understanding how ideas are spread.
21 Within international relations, see for example, Baker Fox, "Environment and Trade"; David L. Levy and Daniel Egan, "Capital Contests: National and Transnational Channels of Corporate Influence on the Climate Change Negotiations," Politics and Society 26, no. 3 (1998): 337; Robert Paehlke, "Environmentalism in One Country: Canadian
Environmental Policy in an Era of Globalization," Policy Studies Journal 28, no. 1 (2000): 160-175. Within scholarship and the presidency, see C. Don Livingston and Kenneth A. Wink, "The Passage of the North American Free Trade Agreement in the U.S. House of Representatives: Presidential Leadership or Presidential Luck?"
Presidential Studies Quarterly 27, no. 1 (Winter 1997): 52-70; Eric M. Uslaner, "Let the Chits Fall Where They May? Executive and Constituency Influences on Congressional Voting on NAFTA," Legislative Studies Quarterly 23, no. 3 (August 1998): 347-365; Kedron Bardwell, "The Puzzling Decline in House Support for Free Trade: Was Fast Track a Referendum on NAFTA?" Legislative Studies Quarterly 25, no. 4 (November 2000): 591-610.
22 See, “The National Environmental Policy Act and the North America Free Trade Agreement; Hearing Before the Committee on Environment and Public Works,” United rd States Senate, 103 Congress, July 22, 1993; “Environmental Implications of NAFTA; Hearing Before the Committee on Merchant Marine and Fisheries,” House of rd Representatives, 103 Congress, November 10, 1993, Serial No. 103-80; “President’s Comprehensive Review of NAFTA; Hearing Before the Subcommittee on Trade of the th Committee on Ways and Means,” House of Representatives, 105 Congress, September
11, 1997.
23 Terry L. Anderson, Enviro-capitalists: Doing Good While Doing Well (Lanham: Rowman and Littlefield Publishers, 1997); the term “eco-capitalism” is intended to trade. convey the balance between use of national resources and the importance of free proponent in the “Wise Use Of particular importance is the essay by Bruce Yandle, a key Movement,” which advocates “common sense” policies for environmental regulation that effectively favor trade over environmental protection.
24 Lawyers in a See Christine B. Harrington, "Outlining a Theory of Practice," in Transgression eds. Maureen Cain and Christine B. Postmodern World: Translation and , and Dezalay and Sugarman. Harrington (New York: New York University Press, 1994) Professional Competition and Professional Power.
25 important insights concerning this Within international relations, some of the most The work of Cynthia Enloe stands out. See necessity have come from feminist scholars.
163 Cynthia Enloe, Bananas, Beaches and Bases: Making Feminist Sense ofInternational Politics (London: Pandora, 1989); Cynthia Enloe, The Morning After: Sexual Politics After the Cold War (Berkeley: University of California Press, 1993).
26 Dezalay and Sugarman, Professional Competition and Professional Power.
27 Juan J. Linz and Alfred C. Stepan, Problems ofDemocratic Transition and Consolidation. Southern Europe, South America , and Post-Communist Europe (Baltimore: Johns Hopkins University, 1996).
^8 Linz and Stepan, Problems ofDemocratic Transition and Consolidation , p. 436-437. They point to Chile as an example of a nondemocratic state that privatized effectively. However, they also point out that the nondemocratic solutions available to a dictator such as Pinochet (i.e., a coherent state and a strong military organization) do not exist in Russia.
29 M. Steven Fish, "Moving Backwards: The Dynamics of Democratic Erosion and
Reversal in the Postcommunist World," paper on file with author, p. 7.
30 Linz and Stepan seem to make an argument about how to know democratic governments that paralleTs that made by Samuel Huntington in The Third Wave: Democratization in the Late Twentieth Century (Norman and London: University of
Oklahoma Press, 1991). Huntington defines a political system as democratic when “its
most powerful collective decision makers are selected through fair, honest, and periodic
elections in which candidates freely compete for votes and in which virtually all of the
adult population is eligible to vote. So defined, democracy involves . . . two dimensions
- contestation and participation . 7). . (p.
31 Robert D. Cooter, "Organizational Property and Privatization in Russia," Law and Democracy in the New Russia, eds. Bruce L. Smith and Gennady M. Danilenko (Washington, DC: The Brookings Institution, 1993); Karl Klare, "Legal Theory and Democratic Reconstruction: Reflections on 1989," A Fourth Way? Privatization, Property, and the Emergence ofNew Market Economies, eds. Gregory S. Alexander and Grazyna Skapska (New York and London: Routledge, 1994), pp. 310-333. In the words
of John W. Ely, Jr., property in liberal theory becomes the “guardian of every other right.” See his discussion in The Guardian ofEvery Other Right: A Constitutional History ofProperty (New York: Oxford University Press, 1992). The U.S. constitutional system was designed to protect the rights of a minority of property owners because of the belief that property promoted liberty and allowed individuals the freedom necessary to actively participate in their polity. For amplification, see Jennifer Nedelsky, Private Property and the Limits ofAmerican Constitutionalism: The Madisonian Framework and
Its Legacy (Chicago: The University of Chicago Press, 1990).
32 World Politics "Liberal Elites, Socialist Masses, and Problems of Russian Democracy," Kullberg and Zimmerman make an 51 (April 1999): 323-358, see especially p. 327. suggests property rights are a interesting argument about economic rights, here, that
164 matter of convention rather than the “natural” right of classical liberalism hought, which Lockean is most often associated with theories of property as natural right stresses *e importance of private ownership as an institution of God. rather than However man-made as Schlatter has pointed out, Locke himself was not always “Lockean”, and whether he agreed with this position in this sense is open to debate. However, the idea to property rights are critical to the proper functioning of economic law was developed ftirther in the nineteenth century by thinkers such as Bentham and Mill While reiectins some of the metaphysical aspect of natural rights and its dependency upon labor theory" these theorists maintained their importance to the proper fimctioning of capitalism It's on this elaboration of Lockean thought that today’s neoliberals rely when championine the free market. For further elaboration, see Richard Schlatter. Private Propertv The History ofAn Idea (New York: Russell and Russell, 1 973).
33 Linz and Stepan, Problems ofDemocratic Transition and Consolidation , p. 457.
Klare, "Legal Theory and Democratic Reconstruction," p. 318.
Charles A. Reich, "The New Property," The Yale Law Journal 73, no. 5 (1964): 733; Gregory S. Alexander, "Pensioners in America: The Economic Triumph and Political Limitations of Passive Ownership,"^ Fourth Way?, pp. 33-54.
36 See Larisa Piiasheva, ’ Mazhno li byt nemnozhko beremenoi? (Minsk: Polifakt, 1991. from an article originally published in 1990), cited in Lynn D. Nelson and Irina Y. Kuzes. Property to the People: The Struggle for Radical Economic Reform in Russia (Armonk and London: M.E. Sharpe, Inc., 1994), p. 244, footnote 16.
31 Quoted in Nelson and Kuzes, Property to the People , p. 63. j8 Hilary Appel, "Voucher Privatization in Russia: Structural Consequences and Mass Response in the Second Reform Period," Europe-Asia Studies 49, no. 8 (December 1997): 1433-1450. j9 Appel lists the other distribution devices as including cash auctions, public tenders, and direct sales to domestic foreign investors. Nelson and Kuzes, Property to the People , report that the plan was organized so that about 23 percent of the property would be sold for money at auctions while the other 77 percent would be distributed through the voucher program (p. 146).
40 The nomenklatura is associated with the bureaucratic structure in Russia, and as Marie
Lavigne points out, is symbolic of communist party privileges. Special lists were developed during the communist regime mentioning all executive positions in the economic sphere, both within the government and enterprise management. These positions were appointed only by the relevant party organs. Thus the party had direct control over these bureaucrats. When the communist system collapsed, the bureaucrats were left in place but little if any oversight, resulting in widespread corruption. Marie nd Lavigne, The Economics of Transition: From Socialist Economy to Market Economy, 2 edition (New York: St. Martin's Press, 1999).
165 Appel, "Voucher Privatization in Russia," p. 1433.
Karen O'Connor and Lee Epstein, "The Rise of Conservative Interest Group Litigation, The Journal ofPolitics 45 (1983): 479-489.
Knoxville: University of Tennessee Press, 1985.
166 bibliography
This bibliography is divided between law and societv „ ki cases and movement ’ govemment documents, literature The latter i„!i j law well as S °"’ e W° rkS newsletters, columns and ,hal a1 as edi.oriaL web geS ^ the ’ 0ther matenal actors under study in produced by this dissertation R„n ! advocates ’ lronmentaIlst aiul property are included in this *7 rights section Th n t than the usual Wi* 3 audience academic one evenThen h P bee" WriHen f° r reader. By law and society the ^holarly woT I ind^th^ hos works wri«en various issues or by scholars about theoretical conc^ J , 1 f 1’ 10 science, sociology, anthropology, '’ P° lltlCal legal and" histoncafwnhng*
P olitical Science/Law anti Society WnrVc
Books and Journals
Abel, Richard, (ed.). 1989. American Lawyers. Oxford: Oxford University Press.
. 1997. Lawyers: A Critical Reader. New York: New Press.
Abbott Frederick M. "NAFTA and Legalization of World Politics: A Case " International Study Organization 54, no. 3 , p. 519-549
Ackerman, Bruce^md. Reconstruct American LaW . Cambridge: Harvard
Alexander Gregory S. 1994. "Pensioners in America: The Economic Triumph and Political Limitations of Passive Ownership," in A Fourth Way? Privatization Property and the Emergence ofNew Market Economies , Gregory S. Alexander and Grazyna Skapsa, eds. New York and London: Routledge Press, pp. 33-54.
' "? Commocti‘y and Propriety: Competing , Visions of Property in American Legal Thought. 1776-1970. Chicago: University of Chicago Press.
Almond, Gabriel and Sidney Verba. 1963. The Civic Culture: Political Attitudes and Democracy in Five Nations. Princeton: Princeton University Press.
Anderson, Terry L. 1997. Enviro-capitalists: Doing Good While Doing Well. Lanham: Rowman Littlefield Publishers.
Appel, Hilary. Voucher Privatization in Russia: Structural Consequences and Mass Response in the Second Reform Period," Europe-Asia Studies 49, no. 8 (December 1997): 1433-1450.
167 X^sttsstsr-r“ a" * «* -
•4mOT “ "°*ra “- LwY^Oxford' U^TrsUy ^ Press.^
' he N 'AFTA CaSe ’" P°/'"“ / &i“ce ^art^lOO, to! 1™1995): Tf-dS^''
Barber rfe C 0 ', ° / ' “' / W - Baltimore: **». Hopkins Un1™rsi«y “ Press
Bardwell, Kedron. “The Puzzling Decline in House Support for Free Trade- Was Fast Les,sia,,ve “ * « ^
Blontle^NtchohsKs '"4 ' iaW ce ’ ^° the Geographies of Power. New York:
Bobbio, Norberto. 1996. Left and Right: The Significance ofa Political Distinction, anslated by Allen Cameron. Chicago: The University of Chicago Press.
Bourdieu, Pierre^ “The Force of Law: ” Toward a Sociology of the Juridical Field translated by Richard Terdiman. 38 The Hastings Law Journal 38 (1987): 805-
1991 • Language and Symbolic Power. John B. Thompson (ed.), Gino Raymond and Matthew Adamson (trans.). Cambridge: Harvard University Press.
Brigham John. 1978. Constitutional Language: An Interpretation ofJudicial Decision. Westport: Greenwood Press.
. 1987. The Cult the of Court. Philadelphia: Temple University Press.
. 1996. The Constitution of Interests: Beyond the Politics of Rights. New York: New York University Press.
and Diana Gordon. 1996. "Law in Politics: Struggles Over Property and Public Space on New York City's Lower East Side," Law and Social Inquiry 264.
and Christine B. Harrington. “Realism and Its Consequences: An Inquiry into Contemporary Sociolegal Research.” International Journal of the Sociology’ of Law 17 (1989): 41-75.
Brisbin, Richard. 1997. Justice Antonin Scalia and the Conservative Revival. Baltimore, Johns Hopkins University Press.
168 Aron, Nan. 1989_ With Liberty and Justice For All; Public Interest in the Beyond. 1980s and Boulder: Westview Press.
Auerbach. Jerold S 1976. Unequal Justice: Lawyers and Social Change in Modern America. New York: Oxford University Press.
Baker Fox, Annette. "Environment and Trade: the NAFTA Case," Political Science Quarterly 100, no. 1 (1995): 49-68.
Barber Sotirios. 1993. The Constitution ofJudicial Power. Baltimore: Johns Hopkins University Press.
Bardwell, Kedron. “The Puzzling Decline in House Support for Free Trade: Was Fast Track a Referendum on NAFTA?" Legislative Studies Ouarterly 25. no 4 (November 2000): 591-610.
Blomley, Nicholas K. 1994. Law, Space and the Geographies ofPower. New York: Guilford Press.
Bobbio, Norberto. 1996. Left and Right: The Significance ofa Political Distinction, translated by Allen Cameron. Chicago: The University of Chicago Press.
Bourdieu, Pierre. “The Force of Law: Toward a Sociology of the Juridical Field,” translated by Richard Terdiman. 38 The Hastings Law Journal 38 (1987)- 805- 853.
• 1991 . Language and Symbolic Power. John B. Thompson (ed.), Gino Raymond and Matthew Adamson (trans.). Cambridge: Harvard University Press.
Brigham, John. 1978. Constitutional Language: An Interpretation ofJudicial Decision. Westport: Greenwood Press.
• 1987. The Cult ofthe Court. Philadelphia: Temple University Press. 1996. The Constitution ofInterests: Beyond the Politics ofRights. New York: New York University Press.
and Diana Gordon. 1996. "Law in Politics: Struggles Over Property and Public Space on New York City's Lower East Side," Law and Social Inquiry 264.
and Christine B. Harrington. “Realism and Its Consequences: An Inquiry into Contemporary Sociolegal Research.” International Journal ofthe Sociology of Law 17 (1989): 41-75.
Brisbin, Richard. 1997. Justice Antonin Scalia and the Conservative Revival. Baltimore, Johns Hopkins University Press.
168 Cam d C hriStine B Harrington (eds.). ’ 1 994. Lawyers in , : a Postmodern orld. Translationr and Transgression. New York: New York University Press.
Connolly, William 1993 The Terms Political of Discourse. Third Edition. Princeton- Princeton University Press.
Connor Henry G. 1920. John Archibald Campbell: Associate Justice ofthe United States Supreme Court. 1853-1861. Boston and New York: Houghton Company. Mifflin
Cooter, Robert D. 1993. "Organizational Property and Privatization in Russia " in Law and Democracy in the New Russia, Bruce L. Smith and Gennady M Damlenko (eds.). Washington, DC: The Brookings Institution.
Cushman, Barry. 1998. Rethinking the New Deal Court: The Structure ofa Constitutional Revolution. Oxford: Oxford University Press.
Darian-Smith, Eve. 1999. Bridging Divides: The Channel Tunnel and English Legal Identity in the New Europe. Berkeley: University of Berkeley Press.
D'Errico, Peter. "Corporate Personality and Human Commodification," Rethinking
Marxism 9, no. 1 (1997): 99-1 12.
Dezalay, Yves and Bryant Garth. 1996. Dealing in Virtue: International Commercial Arbitration and the Construction ofa Transnational Legal Order. Chicago and London: The University of Chicago Press.
and David Sugarman (eds.). 1995. Professional Competition and Professional Power: Lawyers, Accountants and the Social Construction ofMarkets. London and New York: Routledge Press.
Diamond, Sara. 1995. Roads to Dominion: Right-Wing Movements and Political Power in the United States. New York: Guildford Press.
. 1999. Not By Politics Alone: The Enduring Influence of the Christian Right. New York: Guildford Press.
Dreiling, Michael. “The Class Embeddedness of Corporate Political Action: Leadership
in Defense of the NAFTA.” Social Problems 47, no. 1 (2000): 21-48.
Dudziak, Mary. 2000. Cold War Civil Rights: Race and the Image ofAmerican Democracy. Princeton: Princeton University Press.
Dworkin, Ronald. 1978. Taking Rights Seriously. Cambridge: Harvard University Press.
169 “SEJS,/*' M E,m . Bsrkfl.y:
*’ 2 r * - c '““.Si w v* "“ »«->
Life - Ann Arbor: University of Michigan Press, pp. 123-170.
Enloe, Cynthia. 1 989^ Stromas. SeacSes ant/ Bases: Making Feminist Sense of International Politics. 1 London: Pandora Press.
9 ?' F W°™" er: Sexual g Poli,ics at End ofthe Cold War BBerkeley:it n f University of California Press.
EpsteinpLee. 1985. Conservatives in Court. Knoxville: The University of Tennessee
Findley Robert W. and Daniel A. Farber. 1 995. Cases and Materials on Environmental Law. Minneapolis: West Law
Fish, Stanley. 1992 Doing What Comes Naturally: Change, Rhetoric, and the Practice W Llt6rary andLegal Studi6S • ^ Durham 311(1 London: Duke University Press
Fish, Steven n.d. "Moving Backwards: The Dynamics of Democratic Erosion and Reversal in the Postcommunist World." Unpublished manuscript on file with author.
Foster, James C. 1986. The Ideology Apolitical of Politics: Elite Lawyers' Respond to the Legitimization Crisis ofCapitalism, 1870-1920. Millwood: Associated Faculty Press.
and William _. Robbins (eds.) 2000. Land in the American West: Private Claims and the Public Good. Seattle: University of Washington Press.
Foucault, Michel. Two Lectures, in Power/Knowledge : Selected Interviews and Other Writings, 1972-1977. C. Gordon (ed.). New York: Pantheon Press.
Fish, Stanley. 1999. The Trouble with Principle. Cambridge: Harvard University Press.
Fitzpatrick, Peter. 1992. The Mythology ofModern Law. London and New York: Routledge Press.
170 Gl,1 d 3 - ™eC ' ™«™°n Besieged: The Era p" Rise and Demise of Lochner “rPolice Powers Jurisprudence. Durham: Duke University Press
’"9 - The Supreme Co“" in A ™™°n Politics New Institutionalist Interpretations. Lawrence: University of Kansas Press. Goldman Sheldom'^ea^zing the Judiciary: The First Term Appointments." Judicature 68, no. 9-10 (April-May 1985): 315-327
. Reagan s Judicial Legacy: Completing the Puzzle and Summing Up " Judicature F ’ 72, no. 6 (April-May 1989): 319-341.
91 Pi n Pederal J^ges: Lower Court Selection from Roosevelt to 'rrClinton./ ^ \ New Haven: Yale University Press.
and Elliot Slotmck (eds.). 2001. "Clinton's Judicial Legacy," Special Issue of Judicature 84, no. 4.
.Elliot Slotnick, Gerard Gryski and Gary Zuk. "Clinton’s Judges: Summing Up the Legacy," Judicature 84, no. 4 (March-April 2001): 228-254.
Graber, Mark. 2000. “Law School Populism,” presented at the annual meeting of the New England Political Science Association, May 5-6, Hartford. Connecticut On file with author.
Greenhouse, Carol J., Barbara Yngvesson and David Engel. 1994. Law and Community in Three American Towns. Ithaca: Cornell University Press.
Grossman, Joel. 1965. Lawyers and Judges: The ABA and the Politics ofJudicial Selection. New York: John Wiley and Sons.
Halliday, Terence C. 1987. Beyond Monopoly: Lawyers, State Crises, and Professional Empowerment. Chicago: University of Chicago Press.
and Lucian Karpik. 1997. Lawyers and the Rise of Western Political Liberalism. Oxford and New York: Clarendon Press.
Harrington, Christine B. 1985. Shadow Justice: The Ideology and Institutionalization of Alternatives to Court. Westport: Greenwood Press.
. 1994. “Outlining a Theory of Practice,” in Maureen Cain and Christine B. Harrington, (eds). Lawyers in a Postmodern World: Translation and Transgression. New York: New York University Press.
. and Sally Merry. “Ideological Production: The Making of Community Mediation,” Law and Society Review 22, no. 3 (1988): 709-753.
171 , and Barbara Yngvesson. “Interpretive Sociological Research,” Inquiry Law and Social 15, no. 3 (1990): 135-147.
Himmelstein, Jerome. 1990. To the Right: The Transformation ofAmerican Conservatism. Berkeley: University of California Press.
Hunt, Alan .1985. “The Ideology of Law: Advances and Problems in Recent Applications of the Concept of Ideology to the Analysis of Law.” 19 Law and Society Review 19, no. 2 (1985): 11-45.
Hunt. Alan. 1993 Explorations in Law and Society. Toward a Constitutive Theory Law. of London and New York: Routledge Press.
Huntington, Samuel P. 1991. The Third Wave: Democratization in the Late Twentieth Century. Norman: University of Oklahoma Press.
Jacobs, Harvey M. (ed). 1998. Who Owns America? Social Conflict Over Property Rights. Madison: University of Wisconsin Press.
Jameson, J. Franklin. 1926. The American Revolution Considered as a Social Movement. Cambridge: Harvard University Press.
Johnson, Pierre Marc and Andre Beaulieu. 1996. The Environment and NAFTA ; Understanding and Implementing the New Continental Law. Washington, DC: Island Press.
Kalman, Laura. 1986. Legal Realism at Yale, 1927-1960. Chapel Hill: The University of North Carolina Press.
. 1 996. The Strange Career ofLegal Realism. New Haven: Yale University Press.
Kammen, Michael. 1999. American Culture, American Tastes: Social Change and the Twentieth Century. New York: Alfred A. Knopf.
Karst, Kenneth. 1993. Law ’s Promise, Law ’s Expression: Visions ofPower in the Politics ofRace, Gender and Religion. New Haven: Yale University Press.
Kens, Paul. 1998. Lochner v. New York: Economic Regulation on Trial. Lawrence: University Press of Kansas.
Klare, Karl. "Law Making as Praxis," Telos 40 (1979): 123-143.
172 are, Karl. 1994 Legal Theory and Democratic Reconstruction: Reflections on 1989 " Fourth flay Privatization, Property and the Emergence ofNew Market Economies. Gregory S. Alexander and Grazyna Skapska, eds. New York and London: Routledge, pp. 310-333.
Klinkner, Philip and Rogers Smith. 1999. The Unsteady March: The Rise and Decline of Racial Equality in America. Chicago: The University of Chicago Press.
Kluger, Richard. 1976. Simple Justice: The History ofBrown v. Board ofEducation and Black America s Struggle for Equality. New York: Alfred A. Knopf.
Kobylka, Joseph. 1991. The Politics of Obscenity: Group Litigation in a Time ofLegal Change. New York: Greenwood Press.
Kolko, Gabriel. 1963. The Triumph Conservatism of ; A Reinterpretation ofAmerican History, 1900-1916. New York: Free Press.
Kullberg, Judith and William Zimmerman. "Liberal Elites, Socialist Masses and the Problems of Russian Democracy," World Politics 51 (April 1999): 323-358
Lamson, Peggy. 1976. Roger Baldwin: Founder ofthe American Civil Liberties Union. Boston: Houghton Mifflin Company.
Larson, Magli Saffarti. 1977. The Rise ofProfessionalism: A Sociological Analysis. Berkeley: University of California Press.
Lavigne, Marie. 1999. The Economics of Transition: From Socialist Economy to Market Economy. Second edition. New York: St. Martin's Press.
Levy, David L. and Darnel Egan. 1998. "Capital Contests: National and Transnational Channels of Corporate Influence on the Climate Change Negotiations," Politics and Society 26, no. 3 (1998): 33-61.
Linz, Juan J. and Alfred Stepan. (1996). Problems ofDemocratic Transition and Consolidation: Southern Europe, South America and Post-Communist Europe. Baltimore: Johns Hopkins University Press.
Livingston, C. Don and Kenneth A. Wink. “The Passage of the North American Free Trade Agreement in the U.S. House of Representatives: Presidential Leadership
or Presidential Luck?” Presidential Studies Quarterly 27, no. 1 (1997): 52-70.
Locke, John. 1980. The Second Treatise of Government. Edited by C.B. MacPherson. Indianapolis and Cambridge: Hackett Publishing Company, Inc.
173 - — Minneapolis:
McCann Michad W. ,994. Rights a, Work: Pay Equity Reform and the Politics ofLegal Mobilization. Chicago: 8 University of Chicago Press
McClure, Kirstie. 1995. "Taking Liberties in Foucault's Triangle: Sovereignty Discipline, Govemmentality and the Subject of Rights," in Austin Sara, and e S ’ and RiShls A™ Arbor: University of Michigan p ™s
Merry, Sally 1 990 Getting Justice and Getting Even: Legal Consciousness Among Working-Class Americans. Chicago: University of Chicago Press.
Minda, Gary. 1995. "The Law and Economics Movement." Postmodern Legal Movements: Law and - Jurisprudence at Century's End. New York New York University Press.
Miliband, Ralph. 1969. The State in Capitalist Society. London: Weidenfeld and Nicholson.
Miller, Arthur Selwyn. 1968. The Supreme Court and American Capitalism. New York: Free Press.
Miller, William. “American Lawyers in Business and Politics: Their Social Backgrounds and Early Training.” The Yale Law Journal 60 (1951): 66-84.
Nedelsky, Jennifer. 1990. Private Property and the Limits ofAmerican Constitutionalism: The Madisonian Framework and Its Legacy. Chicago: The University of Chicago Press.
Nelson, Lynn D. and Irina Y. Kuzes. 1994. Property to the People: The Struggle for Radical Economic Reform in Russia. Armonk and London: M.E. Sharpe, Inc.
O’Connor, Karen and Lee Epstein. 1989. Public Interest Profiles: Institutional Profiles. New York: Greenwood Press.
and . “The Rise of Conservative Interest Group Litigation,” The Journal ofPolitics 45 (1983): 479-489.
174 olson’x«^^^
and Christina Batjer. “Competing Narratives in a Judicial Retention Election UdlC ‘ al Independence ” Lm ' Society ^ Review 33, no. 1
2 °p° “ °ne C0Untry: Canadian Environmental P^cvTn anq Era of Globalization. • Policy Studies Journal 28, no. 1 (2000): 1 60- j 75
Papke, David Ray. 1998. Heretics in the Temple: Americans Who Reject the Nationals Faith. New York: New York University Press.
Paul, Arnold. 1960. Conservative Crisis and the Rule ofLaw: Attitudes ofBar and Bench, 1887-1895. Ithaca: Cornell University Press.
Plante, Kenneth and Alan J. Baum. "Babbit v. Sweet Home Chapter of Communities for a Greater Oregon : Preserving the 'Critical Link’ Between Habitat Modification and the 'Taking' of an Endangered Species." Nova Law Review 20 (1996): 747- 827.
Plumwood, Valerie. 1993. Feminism and the Mastery ofNature. New York: Routledge Press.
Powell, Michael. 1988. From Patrician to Professional Elite: The Transformation ofthe New York City Bar Association. New York: Russell Sage Foundation.
Reich, Charles A. "The New Property," The Yale Law Journal 73, no. 5 (1964): 733-760.
Robbins, William G. and James C. Foster (eds.). 2000. Land in the American West: Private Claims and the Common Good. Seattle: University of Washington Press.
Rose, Carol M. 1994. Property and Persuasion: Essays on the History’, Theory and Rhetoric of Ownership. Boulder: Westview Press.
Rose, Carol M. Southern California Law Review 57 (1984): 561-599.
Rose, William. Legal Modernism and the Politics ofExpertise: American Law's Crisis of Knowledge and Authority, 1870-1930. Ph.D. diss. University of Massachusetts at Amherst, 1999.
Rosenberg, Gerald. 1991. The Hollow Hope: Can Courts Bring Social Change? Chicago and London: University of Chicago Press.
175 Scheingold, Stuart and 1 Austin Sarat teds ^ i qqc r t
and Poli,ical Cha NewHaven- Yaie' ^^ ”* Sly'PrtsT^'
SChla 1973 ' Pr°Perty: TheHiS ^ 'o'yofAnldea. New York: Russell “us“ell.
$Ch d d “ Christopher E. Smith. 1996. The “ Jurisprudential Vision ofJustice J ntonin ^Scaha. Lanham: Rowman and Littlefield Publishers.
Shklar, Judith. 1964. Legalism. Cambridge: Harvard University Press.
Sdverstein, Helena. Unleashing Rights: Law, 1996^ Meaning, and the Animal Rights Movement. Ann Arbor: * University of Michigan Press.
Skocpol, Theda. "Cultural Idioms and Political Ideologies in the Revolutionary Reconstruction of State Power: A Rejoinder to Sewell," Journal ofModern History (1985): 91.
Skowronek, Stephen. 1 982. Building a New American State: The Expansion ofNational Administrative Capacities, 1877-1920. Cambridge: Cambridge University Press.
Smith, Adam. 1991 . The Wealth ofNations. Amherst and New York: Prometheus Books.
Smith, Christopher E. 1993. Justice Antonin Scalia and the Supreme Court’s Conservative Moment. Westport: Praeger.
Smith, Henry Nash. 1950. The Virgin Land: The American West as Symbol and Myth. Cambridge: Harvard University Press.
Smith, Rogers. 1997. Civic Ideals: Conflicting Visions ofCitizenship in U.S. History. New Haven: Yale University Press.
Smith, Rogers. “Political Jurisprudence, the ‘New Institutionalism,’ and the Future of Public Lawf American Political Science Review 82, no. 3 (1988): 89-108.
Stepan, Alfred C. 1978. The State and Society: Peru in Comparative Perspective. Princeton: Princeton University Press.
176 Switzer Jacqueline V 1997. Green Backlash: The History and Politics of Environmental Opposition in the U.S. Boulder: Lynne Reiner. Turrow SMney. 1998. Power in Movement: Social Movements, Collective Action and roiitics.. London. Cambridge University Press.
Thompson E.P. 1975. Whigs and Hunters: The Origin ofthe Black Act. New York- rantneon Books.
Tilly, Charles. 1995. Popular Contention in Great Britain, 1758-1834. Cambridge-6 Harvard University Press.
Tushnet Mark V . 1987. TheNAACP s Legal Strategy Against Segregated Education. 1920-1950. Chapel Hill: The University of North Carolina Press.
. 1999. Taking the Constitution Away From the Courts. Princeton: Princeton Universityn\/#=>roitx7 Press.Drarn
Twiss, Benjamin. 1942. Lawyers and the Constitution : How Laissez Faire came to the Supreme Court. Princeton: Princeton University Press.
Uslaner, Eric M. 1998. “Let the Chits Fall Where They May? Executive and Constituency Influences on Congressional Voting on NAFTA,” Legislative Studies Quarterly 23, no. 3 (August 1998): 347-365.
Walker, Samuel. 1990. In Defense ofAmerican Liberties: A History ofthe ACLU. New York: Oxford University Press.
Wasby, Stephen L. 1995. Race Relations in an Age of Complexity. Charlottesville: University Press of Virginia.
Warren, Charles. 1966. A History of the American Bar. New York: Howard Fertig.
Weinstein, James. 1968. The Corporate Ideal in the Liberal State: 1900-1918. Boston: Beacon Press.
Whittington, Keith E. 1999. Constitutional Interpretation: Textual Meaning, Original Intent and Judicial Review. Lawrence: University of Kansas Press.
Yalof, David A. 1999. Pursuit ofJustices: Presidential Politics and the Selection of Supreme Court Nominees. Chicago: University of Chicago Press.
Yngvesson, Barbara. 1993. Virtuous Citizens, Disruptive Subjects: Order and Complaint in a New England Court. New York: Routledge Press.
177 Newspapers and Electronic Media Assoc, Assaiis supreme c° un ^x^,;B^s R“ ii ^" ^^™
’ EnVir0nmen,al lssues Tampa Triune, FebmaTy at Stake," The
Drell, Adrienne. "Group Dismisses Judicial Screening Rn R " Thtv n c April § ’ UncaS° Sun-Times, 19, 2001, News section. “SSSi™~5?=. GOldbe C y ^ Feb ^ , ^ ^y ^ ™^
in Se,ec ‘" 18 us - » ***•»
Gretder William. The Right and U.S. th Trade Law: Invalidating the 20 a Century," The ion , ctober 15, 2001, on-line edition, www.thenation.com.
Lewis, Neil A. "A Conservative Legal Group Thrives in Bush's Washington," The York Times S ’ New , Apn 118,2001, Section A.
"Senator's Question Bar Association's Role in Selection Judges, " The New Times York , May 22, 1996, Section A.
MacFarquhar, Larissa. "The Bench Burner," The New Yorker , December 10, 2001 : 78- 89.
Shenon Philip. "Meese Says Some Judges Practice 'Chameleon Jurisprudence'," The New York Times, November 16, 1985, Section 1.
Taylor, Stuart (Jr.). "Conservatives Assert Legal Presence," The New York Times February 1, 1987, Section 1.
178 Movement Literatu re
This is a list o( hooks, articles, newsletters and web legal pages written by various scholars and activists and conservative analyzed in this research.
Scholarly Work
COaSe O The Pr °blem ° fS0Cial C0St " ’ ofLaw and Economics U 960M:44 3, no. ,
ca|abre si. Guid°. "A Letter to Ronald Dworkin." Hofstra Law Review 8, no. 3 (1980):
Calabresi, Guido. "Some Thoughts on Risk Distribution and the " Law ofot Tortslorts, Yaley„i , Lawi Journal 70 (1961): 499-528.
Cooley Thomas M. ,972. A Treatise on the Constitutional Limitations Winch Rest lW °WerS ° S‘a,eS f °f ‘he American Union New York: DcCkipo'"f/ess
Epstein Richard "Book Review: The Next Generation of Legal Scholarship?" Stanfordy Law Review 30 (1978): 635642
" N n< e Law: Corrective Justice and Its r Utilitarian Constraints,” Journal Legal“'f ofJ Studies 8 ( 1 979): 49-74.
1 985 ‘ Takin §s: Private Power and the Power of Eminent Domain. T Cambridge-’ Harvard University Press.
. 1995. Simple Rules for a Complex World. Cambridge: Harvard UniversityJ Press.
Helvarg, David. 1994. The War Against the Greens: The “Wise-Use” Movement, the New Right, and Anti-Environmental Violence. San Francisco: Sierra Club Books.
Horowitz, David A. 1997. Beyond Left and Right: Insurgency and the Establishment. Urbana: University of Illinois Press.
Kendall, David T. and Charles P. Lord. “The Takings Project: A Critical Analysis and Assessment of the Progress So Far.” Environmental Affairs 25 (1998): 509-562.
Malloy, Robin Paul. 1994. "Law and Economics is Moral," in Adam Smith and the Philosophy ofLaw and Economics, Robin Paul Malloy and Jerry Evensky (eds). Boston: Kluwer Academic Publishers.
179 •
ebUttal Re nSe t0 P°Sner’" in Adam Smi,h and •>* Philosophy of LawIm! Wand Economics.£ TBoston: Kluwer Academic Publishers.
Jen7 Evensb,-. 1994. Adam Smith and the Philosophy ofLaw and Economics. Boston: Kluwer Academic Publishers. 1994
Marzulla, Nancie. 2001 “Property Rights Movement: How It Began and Where It Headed, Is m Nicholas Blomley. David Delaney and Richard T. Ford, The Critical eographies Reader. Oxford: Blackwell Publishers, pp. 237-250.
MCGU atr Ck ' M Weyiich ' 1990 ' Nmth Justice: The Fightfor Bork. \tehWashington,: ^7DC: The Free Congress Research and Education Foundation.
Nash, George H] 1996 The Conservative Intellectual Movement in America Since 1945 New York: Basic Books.
Posner Richard. 1971. The Economic Analysis ofLaw. Cambridge: Harvard University r i Coo
-• "Volume One of The Journal ofLegal Studies -- an Afterward." The Journal of Legal Studies 1, no. 2 (1972): 436-442.
.• "The Uses and Abuses of Economics in Law." University’ ofChicago Law Review 46(1979): 281-298.
. "Utilitarianism, Economics and Legal Theory," The Journal ofLegal Studies 8 no. 1 (1979): 103-140.
• 1993. The Problems ofJurisprudence. Paperback edition. Cambridge: Harvard University Press.
• "Against Constitutional Theory." New York University Law Review 73, no 1 (1997): 1-22.
Stone, Christopher. 1974. Should Trees Have Standing? Toward Legal Rights for Natural Objects. Los Altos: W. Kauffman.
Sturgeon, Noel. 1997. Ecofeminist Natures: Race, Gender, Feminist Theory and Political Action. New York: Routledge Press.
Yandle, Bruce (ed.) Land Rights: The 1990's Property Rights Rebellion. Lanham: Rowman and Littlefield.
180 . *
Position Papers, Newsletters, Speeches, etc. °™~~ «* —
w. & ’ pacificlegal.org/mngrph4.htm, downloaded August 1 997. Ca,ter
’ W ''° S °U8h ‘ Sodlty RefUge in the Federalist y DamGain' Clour'Clout, The ABA Journal , September (2001): 46-51
C heney, Richard. Speech before the National Lawyer's Symposium of Soctety, the Federalist November 15, 2001 “ Published in the Federal News S FederalUt Socie^''Our Background," The Federal, s, Societyfor Law and Public Policy studies, www.fed-soc.org, downloaded October 30, 2001
" M,sslon Statement" Federalist Societyfor Law and Social Policy Studies, www.fed-soc.org, downloaded April 15, 2001.
Freeman, Gerald. Speech before the Association of Consulting Foresters ofAmerica. ranscript from Vital Speeches 60, no. 21 (1995): 659-670
Holmes Bruce. "There's an Endangered Species on My Land! Private Landowners as Custodians of Endangered Species," National Wildlife (June 1995): 35-43.
Institute for Democracy Studies. 2001 . The Federalist Society and the Challenge to a Democratic Jurisprudence. New York: Institute for Democracy Studies.
McGuigan and Dawn M. Weyrich. 1990. Ninth Justice: The Fightfor Bork. Washington, DC: Free Congress Foundation.
Nowacki, John. The Free Congress Commentary>, March 28, 2001. Distributed to the electronic mail list of the Judicial Selection Monitoring Project.
Pacific Legal Foundation Web Page, www.pacificlegal.org. Download dates, December 30, 1998.
Policy Goals of the American Bar Association website, www.abanet.org, download date April 15, 2001.
Rauber, Paul. 1 996. "An End to Evolution: The Extinction Lobby in Congress is Now Dealing Which Species Will Live and Which Will Die. Endangered Species Act Reinterpretation," Sierra (January 1996): 23-32.
181 , "
government Documents
f Dalan v. af0ra °>ea ' °reg0"’ CifyofT^iin^S ^^^ 515 U S - <>87 (1995) Gitlow v. New York 268 U.S. 652 (1925) Lucas v. South Carolina Coastal Council, 505 U S 101 M90?t Miller v. California, °"2) 413 U.S 15 (1973) 4 0tt ° (94 U S 1 ,3 ) 24 ‘ ’ L Ed - 22 NAACPv.nZ'cp "“r'Button, , 0877) 371 U.S. 415 (1962) ° l N la V Calif°mia Coastal '[ Commission, 483 U.S. p , , 825 (1987) alazzolo v. Rhode Island, 533 U.S. 606 (2001) Pennsylvania Coal Company v. Mahon, 260 U.S Schenck 393 (192^1 v. United States, 249 U.S. 47 ( 1919) The Slaughter Home Cases ' (Butchers Benevolent Assoc, a,ion v Crescent C,,v and tstock Landing & Slaughterhouse Co.), 16 Wall. (83 U.S.) 36 (1873)'
Endangered Species Act, 16 USCS §§ 1531-1543 North America Free Trade Agreement, Chapter 1 1, Section B and Chapter 20.
’’The National Environmental Policy Act and the North America Free Trade Agreement S "e Com"u e E" !‘ vimnmem Public Works, United SeZt"senate, States 2032()Pc "Environmental Implications of NAFTA," Hearing Before the Committee on Merchant “m F,shenes rd < House of Representatives, 103 Congress, November 10, "President's Comprehensive Review of NAFTA," Hearing Before the Subcommittee on i ade of the C ommittee of Ways and Means, House of th Representatives 1 05 C ongress, September 1 1, 1997. 182