Walter Olson is the author of “Schools for Misrule: Legal Academia and an Overlawyered America,” just released last week.
Olson, who is currently a senior fellow at the Cato Institute’s Center for Constitutional Studies and founder of the online blog Overlawyered.com, has been called the “intellectual guru of tort reform” by The Washington Post. He has written for The New York Times and The Wall Street Journal, among many other major publications, and has appeared as a commentator on numerous television shows, most interestingly “Oprah.”
He is also the author of three other books on legal issues and the American legal system.
Olson recently agreed to answer 10 questions from The Daily Caller about his new book:
1. Why did you decide to write the book?
I’d written three books about the destructive, sometimes zany excesses of our legal system. I knew most bad trends in the law are driven by bad ideas in the law schools. But I couldn’t find a book that told the story of how and why this keeps happening.
2. You write that the ideas taught at America’s top law schools are catastrophic for America. What are some of the ideas that you think are so harmful?
Many destructive areas of litigation in the courts today can be traced to very specific ideas that came into vogue in law schools. Take “educational equity.” Most states at this point have experienced court takeovers of education funding that have undercut local control of schools and shifted power to state governments and to organized provider groups such as teachers’ unions. Then there’s environmental impact review — the paralytic style of litigation that ties project planning up in knots without actually distinguishing good projects from bad. More recently you have the slavery reparations movement, a very destructive movement indeed, which drew much of its intellectual firepower from law profs at Harvard and elsewhere. The courts swatted that one down pretty quickly, and my book tells why. But an article in the Maine Law Review proposing the revival of Indian land claims in the Northeast touched off forty years of hurtful and largely futile litigation.
Incidentally, all four of the legal movements I just named drew support from the Ford Foundation’s big decades-long program of philanthropy aimed at using law schools to change the legal system. That’s part of the story too.
3. Why do you think the number one profession in Congress is lawyer? Is that good for society?
Lawyers have been rising to the top in America since Tocqueville’s day. But only in the second half of the 20th Century, I would argue, did the profession’s intellectual leaders begin to see lawyers as society’s natural governing class. One reason this is dangerous is that — as University of Tennessee law prof Benjamin Barton shows in an excellent new book — lawyers and judges display much class solidarity in arranging rules so as to advance lawyers’ interests, favoring legal complexity that itself creates a wider call for lawyers’ services.
4. What do you mean in the subtitle of your book that America is “overlawyered?” Do you believe that we have too many lawyers in America and, if so, why do you see that as so harmful?
It’s really a terrible idea to turn as many important decisions as we do over to lawyers and lawsuits. Those with a taste or pocketbook for grueling litigation impose their will on the rest of us. Organizations run by their legal departments tend to be bureaucratic, rule-bound and risk-averse. We pay out of pocket, of course, but the non-monetary costs are really the more pertinent here.
5. Is the idea of sovereignty being devalued in our nation’s top law schools? If so, what could that mean for the country?
Just about the hottest trend in the law schools these days is the rapid ascent of international human rights as the subject of study and activism. At a certain level of abstraction we can all agree on this — who doesn’t favor freeing jailed dissidents? But in practice what is being argued is that longstanding subjects of domestic policy debate — from the death penalty to labor law to affirmative action — can’t be decided by purely domestic lights after all, but must be submitted to the norms of the “international community.” More often than not, this hypothesized international community turns out to hold views that are a slightly globalized variant of the voice of New York Times editorials.
6. Are there any law schools that are particularly noxious in your opinion? Are there any that are particularly praiseworthy?
Highly ranked law schools tend to be rigidly standardized in ideological as in other ways. Virtually all have a few, perhaps two or three, outspokenly conservative or libertarian profs. (So don’t go saying they aren’t diverse.) The big exception is the Virginia state school George Mason in the D.C. suburbs, which has made a conscious decision to break from the pack by scooping up talented right-of-center scholars, a departure from the norm so eccentric as to be almost Martian.
7. What should law schools teach?
Most students and most future employers agree: whatever else law schools do, they should get across the “black-letter” law needed to pass the bar and make a go of early practice. But competition for prestige — which law schools, for all their egalitarian pretensions, are totally caught up in — pushes in quite a different direction. Ranking systems reward schools (as Malcolm Gladwell noted the other day) for being more “Yale-like,” although Yale Law School is famous for omitting the basics as beneath its notice. This tension goes back a long way and I trace it in the book.
8. Now that “Don’t Ask, Don’t Tell” has been repealed, do you think law schools that don’t facilitate military recruiting on campus will change their policy? Or will they find another excuse to continue to make it difficult for the military to recruit students?
What drove the recruiting controversy was the sacrosanct nature of anti-discrimination as an idea, certainly not any sort of deep pacifist sentiment. So I expect most schools will heed President Obama’s call to let the military back in. Dennis Jacobs, chief judge of the federal Second Circuit, gave a great speech at the Federalist Society recently (catch it on YouTube) on why so many in elite law lack a feel for why the armed services are distinctive or important.
9. If you were to recommend three books that law students should read, what would those be?
Every entering law student should read a book on how the workings of the law can ruin innocent persons’ lives, such as Richard Ofshe and Ethan Watters’ “Making Monsters: False Memories, Psychotherapy, and Sexual Hysteria.” And one on the boredom, frustration and burnout that beset so many lawyers in big-firm practice; I’m not sure a classic book has appeared on this yet, perhaps because the potential authors are still caught up in 16-hour days trying to pay off their student loans. On the ideological issues, Steven Teles did a very fine book two years ago called “The Rise of the Conservative Legal Movement,” which is quite illuminating about the left side of the legal spectrum as well as the right.
10. What are the three books that have most shaped your worldview?
Kind of an unanswerable question. I do tend to gravitate toward tales of how vast ambitious schemes of uplift make life miserable for their planned beneficiaries. That category would include Edward Banfield’s “The Unheavenly City,” Jane Jacobs’ “Death and Life of Great American Cities,” Charles Murray’s “Losing Ground,” and maybe Daniel Okrent’s new book on Prohibition (“Last Call: The Rise and Fall of Prohibition“), which I haven’t read yet