Consumer rights advocate and Harvard Law graduate Ralph Nader once addressed a group of law students at his alma mater. Among other criticisms of legal training, he suggested that there are two law schools: a school of the law and a school of the unlawful. He had the right observation but the wrong diagnosis—he focused strictly on corporations taking legal liberties to advance their interests.
What he did not appreciate is that law schools themselves have taken liberties to promote their economic interests. They have effectively underwritten a disjointed form of law teaching and split the law into two antagonistic parts. One is a practical school of practice, history, and jurisprudence.
The other is a political school of activism and “lawfare.” But that understates the problem—the disingenuous use of the traditional legal system for economic, psychological, and political disruption beyond traditional adversarialism. Call it “crimefare.” It has created a law school with a split personality.[1]
[RELATED: How the Modern Law School Promotes Political Division and “Lawfare”]
How did this happen? I suggest three causes: the misinterpretation of academic freedom as an absolute license to present ideological partisanship as subject expertise and to take legal or extralegal action to rationalize its utility; excess supply in the labor market that invites professional compromise; and economic and regulatory capture by the larger legal industry that reinforces its cartel.
That is, the law industry wants total control of both sides of the street: the legal and the illegal, civil and criminal. It seeks to maintain authority over-interpreting what is right and what is wrong, what is legitimate and what is illegitimate, what can be punished and what can be overlooked, and especially, the limits of what can be politically tolerated versus what will risk political foreclosure.[2]
There is no other graduate school that has so conflated academic freedom with partisan ideology and interests—and has, therefore, troubled teaching standards and cognitive development. Not only has the law been enlarged into social science, but it has imported a mix of other disciplines and, with this, unrelated special interests. This deviates from law’s central doctrine of neutrality while weakening its authority as a legitimate source of social organization. [3]
[RELATED: Why Law School Should Be an Undergraduate Program]
A recent example is the DNC’s “Democracy Forward” program, which was announced in the New York Times. This job program has already hired eight hundred lawyers, with more to come, creating a “lawfare army” and taking its operations from the White House to DNC-controlled governorships. The law schools love it.[4]
This gets at what really troubles our nation’s university law schools: they have become not just professionally casual but are instilling in their own institutions a passive-aggressive culture of contention and division.[5] This transmits to students an assumption that subverting constitutional order can be a form of rebellious heroism or even a manifestation of professional duty. This creates an unintended cost: the law is recast as anti-social behavior rather than a mature habit of intentionality and an aspiration of rational conduct. Rational conduct requires reason, and reason can demand an equal measure of aggression and restraint, including the power of silence.[6]
Recent changes in the political economy may support improvements in how we operate our colleges and universities. This could include a more sound, mature educational philosophy. It may also support positive changes in law itself, where a select civil code complements our common law system. This would be combined with professional education rules that clarify expected behaviors. In this way, law may rest on more classical principles and aspirations and instill in law students a more constructive sense of personal and professional identity.
[1] An example comes from a Yale Law professor, undergraduate college teacher and resident advisor, Samuel Moyn, who writes in the New York Times. Many of his senior colleagues at Yale Law, and other institutions, have expressed concerns over this behavior that is contrary to regulatory guidelines, but he continues to be given free reign by university administration, acting as a partisan advocate. See https://www.americanthinker.com/blog/2024/11/another_yale_law_professor_who_doesn_t_understand_the_law.html
[2] Above all, it doesn’t want to leave any money on the table, and that means crime is merely another manifestation of law’s empire, and empires exist by controlling and levying all activities.
[3] Such deviation is formally characterized as “unprofessional conduct” by the institutes that govern law schools, including the American Bar Association and the American Association of Law Schools. Academic freedom is not an academic license.
[4] Apparently, the DNC has a new fondness for a curious form of federalism, where they can run their disruption campaign from the states. These state governments, combined with major media and partisan assets in the judiciary and “deep state,” can give them more than just a government in exile, or a “shadow cabinet,” but a secondary, subversive government. It is an example of subnational authoritarianism. Ironically, the DNC apparently seeks to emulate, and distort, the Civil War Confederate government, by creating a network of “Jefferson Davis” separatist governors, acting as self-appointed national leaders backed by major media, technology and partisan judicial assets.
[5] An example comes from the “American Constitution Society” a national not-for-profit with over 200 regional and local chapters, linked to law schools. Their charter is to advance “progressive” law. The University of Chicago Law School chapter is hosting a series of ACA conferences titled “Progressive Lawyering under a Trump Administration.” The ACA website states post-election that it ‘Continues the fight for the rule of law and progressive community.” Among the largest and most influential national law school lobby and education groups, it seeks to unify as a single concept, the definition of law as progressive ideology. That is, it works to cast law itself as progressivism, and specifically taught to law students as legal doctrine, for “social reconstruction.” The ACA has some similarities with the National Endowment for Democracy, which is organized to “change” government.s The NED receives $300MM per year through the State Department.
[6] Yale University’s new president, and former Texas provost Maurie McInnis, recently announced guidance on institutional expression, by articulating an equally important element of it: restraint, or silence (see “Yale leaders advised to refrain from statements on issues of public significance”). In this way, she has precisely incorporated University of Chicago professor George J. Stigler’s criticism of academic freedom as an unqualified speech right.
Image by Chinnapong — Adobe Stock — Asset ID#: 182486361 & Edited by Jared Gould
This article was originally published at www.mindingthecampus.org
