E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Edward Corwin's Constitutional Revolution, Ltd. (1941) describes the rise of laissez faire views in court opinions in the late 19th Century:
In 1878 the American Bar Association was founded with a membership which included the elite of the American bar. On its roster in its early years appeared such names as John A. Campbell, Thomas M. Cooley, John W. Cary, William M. Evarts, Joseph H. Choate, Christopher G. Tiedeman...and others--former Justices of the Supreme Court, future Justices thereof, future Attorneys-General--and one future President!
...the Association soon became a sort of juristic sewing circle for mutual education in the gospel of Laissez Faire. Addresses and papers presented at the annual meetings iterated and reiterated the tenets of the new creed: government was essentially of private origin; the police power of the state was intended merely to implement the common law of nuisance; the right to fix prices was no part of any system of free government; "in the progress of society, there is a natural tendency to freedom"; the trend of democracy is always away from regulation in the economic field; "the more advanced a nation becomes, the more will the liberty of the individual be developed," and so on. The basic assumption of these cerebrations is inescapable. It is that the guaranties which the Constitutions affords private rights were intended chiefly to supply an added sanction to the laws of Political Economy and an endorsement of Evolution, and particularly Herbert Spencer's conception thereof....
Indeed, when one turns from the Reports of the American Bar Association to those of the Supreme Court one discovers a long line of cases...in which some or other of the gentlemen listed above appeared as counsel against the legislation involved.
"The development of the law," say Judge Baldwin in his volume The American Judiciary, "whether unwritten or written, is primarily the work of the lawyer. It is the adoption by the judge of what is proposed at the bar." He ought to have added, "and at the Bar Association meetings, and in books written by lawyers." For the membership of the Association was also prolific during this period of legal or semi-legal treatises whose teachings were strongly penetrated by the gospel of Laissez Faire--works like Cooley's Constitutional Limitations, the most influential work ever published on American Constitutional law...
Thus were the feet of the Court set upon the pathway of Laissez Faire...
Sounds familiar? It's still early, and most successes, if they are to come, lie in the future, but the core agenda substantially overlaps and the method of propagating it is the same: The Federalist Society (and a loosely surrounding network). A supportive circle for the exchange of ideas and mutual promotion, the production of quality papers and books, ample financial and institutional support (Cato and AEI), leading intellectual lights (Randy Barnett and Richard Epstein), well placed judges (not even counting Justice-to-be Roberts) and high level government officials, lawyers actively bringing cases to implement this vision (Washington Legal Foundation, Center for Individual Rights, etc.)--it's all there. Of course there are many differences, but nonetheless there are striking similarities.
This is the Age of Legislation (or, actually, the Age of Administrative regulation). Yet it is still the case that the legal understandings that course through and inform the interpretation of legislation, constitutions, and the common law are largely the production of lawyers, judges, and legal scholars. Legal actors--their ideas, beliefs, and concepts--give life to the law. If that is correct, the Federalist Society and its various supportive adjuncts may come to have a formidable impact on American law.
Don't misunderstand: this is not in the least to bash the Federalist Society. To the contrary, even as I disagree with a good deal of what the Society promotes (or at least what some of its more vocal members promote), I admire their conviction and strategic acumen.
Even at the height of its dominance, laissez faire never completely controlled US jurisprudence, but it had a real impact for almost five decades. We may be in for another round, more modest perhaps, not threatening the basic elements of the social welfare state (I hope), but no less real in its consequences. Time will tell. Meanwhile, those who oppose these views must recognize that we are being out organized and out produced. The Federalist society is spreading its views and (more importantly) acting strategically to advance them. Posted
10:47 AM
by Brian Tamanaha [link]
Comments:
This was a fantastic article. Really loved reading your we blog post. The information was very informative and helpful...