November 07, 2005

posted by Al Brophy

Despite the fact that she went to a good law school, I think it's pretty safe to say that Ann Coulter is an academic of any type.

are conservative legal academics the ones producing the most influential or the most interesting scholarship these days?

?????

It seems to me that conservative legal academics are mostly mired in L&E (where the interesting work is generally blatantly wrong [e.g. fairness vs. welfare, everything Posner or Viscusi has ever written] and the correct work is boring and hypertechnical [e.g. everything in the journal of law and economics]), or originalist interpretations of every single misplaced comma and mustard stain in the constitution (interesting and influential, but a bit of a one-note song).

On the other hand, the much more interesting behavioral law and economics stuff comes from the left mostly (Hanson, Sunstein, Jolls, etc.), most of the cyberlaw people seem to be at least liberalish. And then there's Balkin, Ackerman, Cole, Levinson, etc. etc.

In the legal academy, the liberals are the establishment. Tribe, Sunstein, Kamisar, Lessig, etc. The conservative legal academics are the outsiders looking to create change. They key is that most legal scholarship today tends to be inward; it looks to change other legal scholarship, not the world.

To the extent it makes sense to talk about liberals and conservatives in the 19th century at all (other than to refer to people who favor or oppose monarchies, for example), weren't Democrats the more "conservative" party? It's only post-1932 that the party alignment came to resemble what it looks like today.

Bruce's comment is interesting; it's true, there was a realignment of the positions of parties in the early part of the twentieth century (though that was more along the lines of attitudes towards African Americans than economic issues).

In the antebellum era, the Whigs (the fore-runners of the Republicans) were, of course, diverse. They included such divergent thinkers as Lincoln, Harriet Beecher Stowe, and Alexander Stephens (later Vice-President of the Confederacy). However, Whigs also stood (by and large) as the party of property rights. (Whigs also were more in favor of government regulation, at least of morals.) The Democrats (then, as now) were by-and-large more concerned with concentration of wealth than the Whigs. One classic confrontation between Whig and Democrat views of property was the Charles River Bridge case, in which Chief Roger Taney narrowly construed a state charter, to allow a competing bridge to be built. Joseph Story dissented.

The Whigs portrayed themselves as the party of respect for property and ordered liberty. Democrats (particularly Andrew Jackson) were seen as not sufficiently respectful of property or the rule of law. Hard to make Kent out as anything other than a conservative. He was opposed to expanding suffrage in New York, for instance. I think part of why Whigs authored legal treatises and Democrats didn't has something to do with their attitudes towards law. If one takes law seriously, I suppose, that you're more likely to explore its intricacies. At least that's been my operating hypothesis for a long time.

My colleague at the University of Alabama, Lawrence Kohl, published a very fine book on the differences between Whigs and Democrats, The Politics of Individualism: Parties and the American Character in the Jacksonian Era, a few years ago. He discusses the nuances of what I've just painted in very broad brush here.

It seems as though the literature that critiques the present system is often on the left of the political spectrum. That supporting it is on the right.