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Somin on Legal Conservatism

By Lawrence Solum

Ilya Somin (George Mason University - School of Law) has posted Lessons from the Rise of Legal Conservatism (Harvard Journal of Law and Public Policy, Forthcoming) on SSRN. Here is the abstract:

Steven Teles's The Rise of the Conservative Legal Movement is the best and most thorough attempt to document the spectacular growth of conservative efforts to influence the law since the 1970s. Both scholars and legal activists have much to learn from his careful account of this important episode in legal history.

Teles's most important finding is that effective institutionalization of legal change requires not only a demand for reform by voters or interest groups, but also a supply of trained advocates, public interest law firms, and judges willing and able to influence the law in the direction desired by an insurgent political movement. As Teles effectively demonstrates, public demand for legal change does not in itself generate the needed supply of institutional resources. Through his analysis of the growth of conservative and libertarian organizations such as the Federalist Society, the Institute for Justice, the Center for Individual Rights, and others, Teles chronicles the difficulties faced by the legal right in their attempts to create the cadre of lawyers and institutions they needed to challenge liberal dominance over the law. The successes and failures of this effort are instructive.

Part III also briefly discusses a few limitations of Teles's argument. Perhaps the most important shortcoming is his neglect of social conservatives' efforts at law reform. Most of Teles's account focuses on libertarian organizations that sought to use judicial review to limit the power of government. Social conservatives, by contrast, sought to undo judicial constraints on government power for the purpose of using the state to advance social conservative ends, most notably, banning abortion and pornography. Fuller consideration of the social conservative experience is needed to test the generalizability of Teles's conclusions.

Finally, Part IV shifts gears and addresses some of the lessons of Teles's account for libertarians and conservatives who wish to strengthen judicial limits on government intervention in the economy. To succeed, pro-market public interest organizations must keep their distance from business interests. In addition, Teles shows that pro-market legal activists have not done enough to promote follow-up litigation to exploit and enforce major precedential victories. On this point, as on others, legal activists of the right can learn from their left-of-center counterparts.

Full post as published by Legal Theory Blog on February 19, 2009 (boomark / email).