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Volume 47, Number 1 (Winter 2010)

The First Thing We Do . . .

book cover imageUnrestrained: Judicial Excess and the Mind of the American Lawyer
by Robert F. Nagel.
Transaction Publishers (New Brunswick, N.J.)
148 pp., $39.95 cloth, 2008

Stephen B. Presser

Robert F. Nagel, the Ira C. Rothgerber, Jr. Professor of Constitutional Law at the University of Colorado School of Law, is a bold fellow. He was one of only three Professors of Constitutional Law (I was another, and the third was Richard Parker of Harvard Law School) who strongly supported the idea of amending the Constitution to reverse the United States Supreme Court’s decision that flag desecration was speech protected by the First Amendment. For a long time, Nagel has been a valuable contrarian, arguing against the tendency of courts in general and the United States Supreme Court in particular to engage in policy-making that according to the original understanding of the Constitution should have been the task of the political branches (the legislature or executive) or of state and local rather than federal bodies. This book is a sort of culmination of Nagel’s efforts, and argues that the problem is not actually the Justices, but rather the nature of American legal education itself. As his title indicates, Nagel believes that our judges are currently “unrestrained” and that this “judicial excess” is produced by the kind of minds that our law schools now generate.

There is no doubt that we’ve got a problem. When seven Justices of the United States Supreme Court, with absolutely no textual or historical basis to do so, could declare in Roe v. Wade in 1973 that the Constitution guarantees women a right to terminate pregnancies, when two state courts (Massachusetts and California) can suddenly decide that their Constitutions forbid their states from limiting marriage to heterosexual partners, contrary to thousands of years of experience, and when Justice Anthony Kennedy can declare, with sublime arrogance, that emerging worldwide standards mean that consensual homosexual acts cannot be the subject of prosecutions or that the death penalty cannot be applied to juveniles, then, it would appear, that our courts are not judging, but legislating. Such behavior, Montesquieu, Blackstone, and Alexander Hamilton told us, is flatly inconsistent with liberty and the rule of law.

Indeed, for Nagel, we’ve reached the point where the behavior of our lawyers and judges “has degraded our political discourse, intensified social conflict, drained moral confidence, institutionalized revenge, undermined local political life, and impoverished the scope and significance of public decision-making.” Unlike most of the many volumes from conservatives which have been written lamenting modern American courts’ notoriously lawless behavior, or the even more numerous volumes by liberal law professors championing and praising the constitutional creativity of the Supreme Court, Nagel does not choose to condemn a particular set of jurisprudes while endorsing others—he has critical things to say both about the champions of original understanding such as Scalia and the advocates of a living constitution such as Earl Warren and William Brennan.

In this pungent and pithy (only 148 pages including the index) “plague on both your houses” volume, then, judicial overreaching is found to be something now inevitable foisted on us as a result of the manner we train our lawyers. By our use of the case method and our Socratic style of legal education, Nagel argues, we law professors teach our students to believe two somewhat contradictory things—that judges’ personal preferences inevitably influence cases, but that personal idiosyncrasy can be reduced to acceptable levels because judges are constrained by a need to follow previous historical precedents and decide cases only with reference to the arguments of counsel and the relevant texts of Constitution, statutes, and regulations. This, Nagel claims, breeds judges (all of whom are lawyers) who speak an esoteric language, and who become convinced of the moral clarity of their reasoning and the infallibility of their judgment, to such an extent that they are compelled to dictate the solutions to our most contentious social, cultural, and political issues. Or at least I think that’s what Nagel is telling us. His little polemic appears designed to arouse us, in the way that Shakespeare’s Dick the Butcher was aroused, to do away with the baleful influence of lawyers. This may be the meaning of Nagel’s cryptic last sentence in which he laments “modern understandings of the nature of law” and “the realities of legal education and practice,” and calls for an effort “to go beyond the confirmation process itself to emphasize direct pressure on the judicial system exerted by institutions that are not dominated by the legal profession.”

In particular, Nagel says that it’s a mistake to think that one more conservative judge (or several more liberal ones) will alter anything, since the psychological pathology he laments is pervasive among anyone educated in an American law school. Nagel’s book deserves the attention of anyone seriously concerned about the current bizarre state of American constitutional law, but it’s probably not yet the time to implement Shakespeare’s solution of killing all the lawyers. There’s no doubt that something ought to be done to reverse the usurpations of the judiciary, and my preferred solution is a series of constitutional amendments, but I suspect that any pathology of our politics is not primarily due to the failings of American legal education, but rather flows from deep inconsistencies in our culture. We’re a deeply moral people, but one also deeply committed to individualism; we’re in favor of popular sovereignty, but similarly in favor of limited government; and we demand economic progress while unwilling to jettison social security; we’re leery of entangling foreign alliances and we simultaneously believe it’s our obligation to police the world. No wonder we have fierce political disagreements. Better Supreme Court justices probably won’t alleviate any of those antinomies, and perhaps their alleviation isn’t even desirable. The genius of America is that we’ve been able to live and flourish with a politics and culture that is so frankly contradictory, and a Burkean aversion to abstract principles untethered to our experience has and still does help us to muddle through.

None of this is to say that Nagel has not eloquently, incisively, and correctly diagnosed some difficulties in the manner in which we train lawyers, and for that reason his slim tome is a splendid contribution. My hope, however, is that works like Nagel’s lead us in the direction of rethinking the content of law school courses, perhaps to de-emphasize the primacy of Constitutional law (which, I suspect, will have a decreasing importance in the practice of American law and life in the coming years), the better to equip our students to practice in an emerging global legal system and to meet the needs of clients who will be challenged by the emergence of rival economies in China, India, Japan and other nations. For too long American Legal Education has rigidly insisted on a three-year yoke of traditional disciplinary studies, much of which is devoted to what we call the common law topics (contracts, torts, property, civil procedure) all of which have their origin in late medieval England, and which are all becoming transformed with the advent of the internet and global service economies. Here at Northwestern we’re experimenting with a two-year JD, and we’re among a group of several leading law schools introducing new courses in accounting, finance, organizational behavior, and a slew of studies relating to psychology, economics, history, sociology, and other empirical social sciences. Nagel has done a nice job spotlighting the crabbed nature of traditional American legal education. If he has perhaps slightly overdone its effects, he’s still gotten right the need to replace it.

Stephen B. Presser is the Raoul Berger Professor of Legal History at Northwestern University School of Law, a Professor of Business Law at Northwestern’s Kellogg School of Management, and the Legal Affairs Editor of Chronicles: A Magazine of American Culture.

Posted: April 5, 2010

A poor man, if he has dignity, honesty, the respect of his neighbors, a realization of his duties, a love of the wisdom of his ancestors, and possibly some taste for knowledge or beauty, is rich in the unbought grace of life.

Russell Kirk

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