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Schools for Misrule: Legal Academia and an Overlawyered America Hardcover – March 1, 2011
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From Publishers Weekly
The latest book from Olson (The Excuse Factory) is part historical overview and part cutting-edge commentary examining corporate case studies and public and tort law with a sharp analysis of the academic system and the internal and external forces shaping its agenda. Law schools mould the future leaders of America, shaping the nation and influencing consensus. Recent legal scholars have infiltrated politics, journalism, and broadcasting, claiming greater authority and creating potentially serious social repercussions. The author explores perceived political bias at Harvard and Yale, their dependence on "left-tilting philanthropy," and the tendency of professors to permeate the curriculum with their own values. Additionally, Olson argues, the commercialization of American universities creates markets of intellectual property and a culture of one-upmanship. Often with tongue firmly in-cheek, Olson addresses the "American disease" of dubious injury claims and product liability lawsuits, the ever-spurious "recovered memory" litigation, and other legal precedents. This hard-hitting, witty account reveals the effect of law on the individual and the collective and astutely forecasts the future of law reform, in the academy, in politics, and across the globe.
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As such, Walter Olson explains in his new book, Mr. Obama was subjected to an environment of overwhelming leftism.
Democrats outnumber Republicans 28 to 1 on the Stanford law school faculty, 23 to 1 at Columbia, Mr. Olson reports.
Mr. Olson's book describes the various ways that law schools have shaped public policy. Clinics on the law school campuses get involved in political issues. He writes that Yale's Legislative Advocacy Clinic "attempts to move the state of Connecticut toward 'a more progressive agenda in taxing.'" CUNY law school, meanwhile, is "itself a unit of the same New York City government it regularly sues on welfare issues. The website of Fordham's Community Economic Development clinic says it works to "limit gentrification."
Law schools, including professors who profited personally from their work on anti-tobacco litigation, helped shape changes in product liability law. They also helped spawn "public law litigation" suits under which, Mr. Olson recounts, courts "in more than half the states took control of school financing systems" and "took over control of child welfare departments in thirty-five states, prisons in more than forty, and jails in all fifty..... The process thrust courts deeply into management, with reform orders often going on for hundreds of pages specifying such details as the required square footage of prison cells, the wattage of light bulbs, the temperature at which food had to be served, and so forth."
Mr. Olson quotes one law professor acknowledging that such litigation is meant to "further a decarceration strategy" by making incarceration "both difficult and expensive." The professor has since joined the Obama administration.
Mr. Olson notes drily that "Frequently, many members of the ostensible beneficiary class neither want nor welcome the changes ushered in by court order. Overcrowding suits often result in inmates' transfer from a camped and rundown in-town facility to a more modern but remote facility that is harder for friends and family to visit....In one consent decree, New York City agreed to elaborate new rules restricting its ability to evict disruptive families from its housing projects. But most residents in fact feared the crime spawned by such households, with the result that leaders of the projects' tenant councils wound up hiring lawyers to intervene in the proceedings against their 'own' side."
Mr. Olson, who is a fellow at the Cato Institute and editor of Overlawyered.com, excels at outlining the problems. He's more reticent about possible solutions. He notes that the Ford Foundation had helped to reshape law school curricula and "from 1966 to 1969 contributed start-up funding for Mexican American Legal Defense and Education Fund, the Environmental Defense Fund, the Sierra Club Legal Defense Fund (which changed its name to EarthJustice) and the Natural Resources Defense Council."
So perhaps large-scale philanthropy could have some effect; the book might have mentioned the Olin Foundation's work in spreading Law and Economics to law school campuses. Any donor or foundation wanting to reshape legal education would find Mr. Olson's book a fine place to begin.
In the meantime, the schools are unlikely to reform on their own so long as they have more applicants than they can handle lined up for the chance to pay (or borrow) hefty tuition payments. Never mind that the students may be motivated less by the education provided than by the attendant chances at high-paying law firm jobs in which the students can labor for clients that include the very corporations their professors demonized.
And for all this, the picture may not be entirely as grim as that painted by Mr. Olson with all his usual lucidity and flashes of humor. Justices Alito and Thomas are both Yale Law graduates, after all, while Justice Scalia, a Harvard Law graduate, taught at Stanford and the University of Chicago.
In the meantime, if the law professors are too far to the left, the rest of Americans, while living with the public policy consequences, can at least know that while the law professors have their wins in court, they are often less successful in the court of public opinion. Mr. Obama and Mr. Clinton both managed to get elected, but they were quickly hemmed in by Republican congresses elected after they overreached. In the end, in the American system, the politicians who write the laws, and the voters who put them there, have a way of outranking even the law professors.
Disclosure: The publisher sent a review copy of this book.
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