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For better government, don’t kill all the lawyers

 

Most everyone hates lawyers. So it probably isn’t a surprise that many people hate law professors, too. A recent front-page article in The New York Times, much discussed in legal circles, was the latest salvo in what is now a long line of attacks depicting the legal academy as impractical and unworldly.

I think the dislike, though, is a result of law professors being too much in the world. You see, law professors — and I should disclose here that I am one — very nearly run the world, or at least certain parts of the U.S. government. When you include Justice Anthony Kennedy, who taught nights, they make up the majority of the Supreme Court.

They also dominate a wide range of policy discussions that are by no means restricted to technical questions of law. As an elite within an elite, law professors deserve a close look, and a bit of an explanation about how they think.

Start with the most obvious facts. The president of the United States is a law professor. He was also a state politician and a community organizer, but compared with these public-service-oriented tasks, teaching constitutional law was his actual job for 12 years.

Bill Clinton’s first job in Arkansas — and his only nonpolitical employment there — was, you guessed it, law professor. Same for Hillary Clinton, although she later went on to practice law.

Ever since Felix Frankfurter sent his “happy hot dogs” to write New Deal legislation and staff FDR’s new agencies, law professors have been trying to affect the way government works. But you don’t need history to make the point. One week in The New York Times will suffice. The same week that it ran the article explaining that law professors are irrelevant, it ran a long article about smog policy that identified Cass Sunstein, Obama’s Chicago colleague (and later a Harvard law professor), as the key player in evaluating the costs and benefits of the rejected regulations.

The paper published op-ed articles by Lawrence Lessig (another Obama contemporary in Chicago and now a Harvard professor) on fixing corruption in electoral politics and by Einer Elhauge (Harvard) on healthcare. It also ran a lengthy profile of Elizabeth Warren, who invented the Consumer Financial Protection Bureau and is running for Senate from Massachusetts while still working as a Harvard law professor. One week, one law school. It’s enough to make you wonder, Shouldn’t there be equal time for somebody else?

The fact that these people are all law professors matters because law professors, whatever their internal diversity, have some pretty distinctive habits of mind. First, they think in terms of how institutions are supposed to work in theory and then compare the theory to the reality. The comparison is usually frustrating. Law professors who look at policy are therefore natural reformers. They want to hold people to their aspirations, not accept the messy compromises that life throws at us.

Lessig, for example, sees the way money shapes elections and defines it as a corruption of the Founding Fathers’ vision. Which it is. Except that the founders were hopelessly naive about politics — and the system we have, from political parties on down, bears little relation to what they dreamed of in Philadelphia.

Because they tend to like logical principles, law professors are also big believers in the power of reason to prevail. If they could just get the public to see things clearly, they tell themselves, results would surely improve. Sunstein’s faith in enlightened cost-benefit analysis depends on the notion that careful thought will improve policy results. He’s right, of course — and that’s why Glenn Beck labeled the moderate, pro-business Sunstein the “most dangerous man in America.”

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