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tv   Book TV  CSPAN  April 9, 2011 4:00pm-5:00pm EDT

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[laughter] >> and you may take one of her cards and send it back to her and see if she will include you in her next book. so thanks so much. [inaudible conversations] [inaudible conversations] ..
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[inaudible conversations] prose. [inaudible conversations] >> and that concludes our coverage of the 2011 annapolis book festival from the key school in maryland. for more information on the book festival, visit the key school.org and search for annapolis book festival.
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>> now on booktv, walter olson, the author of "schools for misrule," in which he argues that poor policy ideas born in law schools have migrate today the status of national policy. the discussion takes place at the heritage foundation in washington, d.c. and runs about an hour. >> what is taught this law schools in one generation will be widely believed by the bar in the following generation, unquote, said one great law professor. and he might have of added that it will also, because it is widely believed by the bar, it will wind up being believed by much of the press and public. this was not a new story to me. i have written several books about the he tick juiceness of our legal system, and in more cases than not, that can be traced back to academic origins. if you have a beef with the tort
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system, for example, in the unite, you should -- in the united states, you should take it up with dean prosser of berkeley. if you think our system of sexual harassment law is less than ideal, your problem is with professor katherine mcken non. so it is with class action law, civil procedure, employment law and many, many others. and this can be traced big and small. i tell a story in the excuse factory, my book about workplace law, of the then-novel idea that the law ought to combat looksism. and for those of you who are not current on looksism, it is the type of improper bias by which employers are constantly hiring really great looking people and paying them more and promoting them further in preference to the rest of us who are more homely. [laughter]
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and, yes, it's unfair, and, yes, it's unfair, but not until around the time the harvard law review ran an interminable -- i shouldn't say that -- 80 or 90-page student note on the need for the law to combat looksism. not until around then had it been thought that it was much of an issue for the law. but there in, i believe, the year 1999 there appeared this extremely long harvard law review student note, and it department take too long before -- it didn't take too long before looksism became an interest for legislators and for judges. indeed, the district of columbia right here has passed one ordnance banning looksism, and so have a number of other municipalities leading to cases like the one reported a couple of years back of the gentleman who was finding it hard to keep his job at a retail outlet
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because of the multiple tongue peerings which actually had inflicted on him a speech impediment. and he said to the newspaper, this is what got me thired. [laughter] and he had called the lawyer, i believe, and was proceeding to contest this. well, the harvard law review article had talk thought to a lot of these implications and had gone to the extent of proposing wider use of telephone interviews for applicants' new jobs and, this is my favorite part, interviews behind screens. [laughter] and we know that this is serious because the author of that harvard law review piece went on to write the law editorials for "the new york times" in later years. he's now left that and is teaching law at yale, so help me. [laughter] so the original title for my book was "ten bad ideas from the law schools and how they change the world."
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at least that's how i started out, what became "schools for misrule." and as you can tell, i abandoned that somewhat jaunty title and, indeed, i abandoned the framework for it because i couldn't answer the question. really, mr. olson, only ten? where are you going to stop in the how long is this book going to be anyway? so i realized that i needed to turn in part to why we get so many of these bad ideas, why law schools keep turning out certain kinds of bad ideas. and it's not just that they are randomly generated bad ideas. and some of it, but only some of it is ideological. todd mentioned that the law schools -- let me understate again -- are not exactly hot beds of libertarian and conservative thinking these days. despite the best efforts of richard upsteven, randy burnett, john mcginn necessary, richard
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posener, richard epstein. [laughter] they are outnumbered, and it depends on which study you look at. in some studies it's only 6 to 1 or 8 to 1 ratio of democrats to republicans. 23 to 1 at columbia. those figures may be exaggerated, and yet harvard according to people who should know did go for 30 years without hiring a sickle republican -- single republican. elena kagan ended that, i believe. and over much of that time harvard maintained a committee to fret over its lack of diversity. while it wasn't hiring any republicans. john mcginn necessary of northwestern put it this way. even as the torrey party or rather, i'm sorry, the anglican church in this great britain has been described as the torrey party at the pulpit, so the
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legal prof sore yacht in most good law schools can be described as the democratic party at the lectern. now, that has been changing. i mentioned that it's been changing at harvard, and, indeed, most schools that have any self-respect these days will have a libertarian or a conservative outspoken law professor. they may hesitate to have more than one for fear that they'll breed. [laughter] but they do tend to have one these todays, and so things are changing. this is not new, this ideological slant goes back a good, long way, and if you wanted to, you could trace it back to rosco pound about a century ago who said that law should be conceived as applied social engineering. isn't that a wonderful phrase? which means that law schools might think of themselves as
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schools of engineering. but it really began picking up momentum during and after the new deal. various law professors joined fdr's administration. even more notably people in fdr's administration went over to law schools after they left and became professors, and the stage was set in 1943 for the publication of the most widely cited and, i believe, most influential article ever published about legal education. that being harold loswell's and missouri as mcdougal's legal publication and public policy in the yale law journal. and let me set the stage for just a moment. laswell was a very influential new deal official who is sometimes described as the modern father of propaganda, and at the time he and mcdougal
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wrote this, the law itself had just changed in a tectonic 9.0 richter scale way because the supreme court had given in the switch in time saves nine had decided that, after all, the u.s. constitution did not prevent the government from running the economy, it would agree not to strike down most regulatory programs. and so we were clearly launched upon a very new era, at least so laswell thought in which the government would be doing much more than it ever did. and yet here we have the law schools still teaching the same old curriculum. this was the beginning of the article's argument. in particular the law schools were still teaching mostly about so-called private law, contract and property and various other topics that were, indeed, typically thought of as necessary training for main
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street, private lawyers who were going to go out and begin arranging business deals resulting with disputes on main street, advising affluent clients as to how to keep their money out of the government's hands. but this was not, he said, what lawyers of tomorrow should be learning how to do. he said that instead of drilling students in such outdated matters as bills and notes, the new curriculum should be determined, quote, in reference to social objectives and toward achievement of democratic values. now, you know when it gets that vague that you're in trouble, but he went on with some specifics. he said that he, i mean, they but laswell is often identified as the key author here, de-emphasizing such bastions of private law -- and i'm quoting here -- as contracting property which are, quote, much-favored instruments of the laissez-faire society. if you had to have a course in
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property law, they asked, why not take land use planning as the proper jumping-off point for your property course? worse yet, they argued, was the public law, the constitutional law. even though the supreme court had made clear that it was now going to change to accommodate the new type of government, laswell and mcdougal complained, quote, the so-called public law courses are still giving too much deference to separation of powers, jurisdiction, due process, equal protection, interstate commerce, etc., air quotes. trusts and estates should recognize that private inheritance was going to be kept to a minimum in the new society. local government law, they should realize lawyers really needed to be trained in this new forms of regional government like the tennessee valley authority and how it had been set up. and on and on. law schools, they said, should adopt the mission of conscious,
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efficient and systematic training for policy making. now, this was ingenious. part of the ingenuity was if schools would stop training you how to be a main street, private lawyer, that whole segment of society would cease being so important. and yet it was so terrible, i mean, it was terrible on any number of levels, let's face it. but let me stress how terrible it was as prediction because had you been trying to train, even a policy lawyer let alone a practicing main street lawyer, the last thing you would have wanted to do was to substitute tennessee valley authority organization for local government law to, indeed, if you turn to the public law areas, every single one of the concepts they wanted to de-emphasize turned out to be vitally important and have remained vitally important to this day in how lawyers practice law and how the supreme court applies it. so a prediction of what lawyers
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would need to know, i could add that every time you hear someone from law schools predicting that one area of law will boom in the future so we should train more lawyers and another will shrink so we should train fewer, ignore them. they are, approximately, always wrong. back in the '70s, they thought energy law was going to boom, which it didn't, and no one predicted that trademark licensing law was going to boom, which it did. they predicted group legal services would boom which they didn't and divorce would shrink, which it didn't. on and on. always ignore them. but it wasn't just, of course, a matter of prediction. laswell and mcdougal were being kind of ideological about it, and even though as i will mention in a moment no one really adopted their program whole, it had a couple of influential, atmospheric influences. one of them was that it got professors used to the idea that their students were going to be out there running the world in a
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policy sense rather than just doing business deals and tax planning. and that principles they themselves taught might want to remove the shaping of the world. law as it is was down in prestige from then on. law as it should be was up in prestige from then on. and although some might say that there was a possible problem of indoctrination here, laswell and mcdougal had the answer to that which is you teach students the old curriculum. after all, you're indoctrinating them into a different way. you can't escape, it's just which kind, and we've heard a lot of that in later years since. well, as i say, no one adopted the program wholly because it was just too impractical to drop the old curriculum entirely. and yet about ten years later something very noteworthy happened which got a lot of people's attention in legal academia which is that yale law
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school dropped property as a required course. and this was almost unheard of. because property, in the first place, terribly important on the bar exam. it is terribly important in all sorts of areas of real life, legal practice. but yale students then, as now, were so smart they were so agile in their minds that they could cram for that stuff when it came time to actually prepare for the bar exam. and in the meantime, think of the time you would free up for philosophical discussions until midnight and past. you know, truly stimulating and interesting. and yale then as now was the most prestigious of all law schools. and this was intimately related to the fact that yale was the most impractical and philosophical of all law schools. you know, yale professors, it came to be kind of famous that they would be adore my clueless if you had an actual legal problem you needed someone to soft, someone you needed -- solve, someone you need today
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bail out of jail or something. it was as if professors at the most admired medical schools were at the most loss when confronted with an actual sick patient. and this got transmitted to other law schools through the competitiveness that so characterizes the law school world. and there is an irony here. i mean, as identify hinted, they -- as i've hinted, they talk this great egalitarian game about everyone being on the same footing in society, and yet there are no debutantes at a coa till onwho are half as jealous of each other, none who are as obsessed with ratings and pecking orders as law schools are with the u.s. news pecking orders. and between that and accreditation, there is an enormous pressure for them to become more yale-like. there was an interesting article by malcolm gladwell in last month's, one of last month's new
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yorkers in which he talks about the many failings of university ranking systems. and he points out with respect to the undergraduate experience that all schoolses are under pressure to -- schools are under pressure to pretend to be more yale-like, to pretend to be more research-oriented, interdisciplinary this and philosophically grounded professors in every area. and yet this is not what actually works for most schools. i compare it to someone who looked out at the entertainment world and noted that the most successful single act was lady gaga and, therefore, recommended all other entertainment acts become more lady gaga-like. no, no, the only one who can actually get away with that stuff, and so it is with yale and its highly philosophical, highly policy-oriented way of legal instruction. but it did work for yale because without as much time spent on boring old things like the old
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property law, it was very influential. i will beliefly summarize here -- briefly summarize here because law schools like business schools and education schools go through bouts every five or ten years in which some completely new idea sweeps through. so you had charles rice with the new property, the ideas that the right to welfare payments or the right to a government job or the right to teacher tenure or the right to some regulatory favor from government was really a new property that you should be entitled to keep, much preferable to the old property. this is credited with touching off the, much of the rights revolution of the '70s in which courts began creating various new due process and sometimes substantive rights with consequences we see today in the difficulty of getting rid of badly-functioning public employees and many other consequences.
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on to the public interest law of the 1970s, very much a project martialed at the leading law schools through the new conceptions that constitutional law was believed that the u.s. constitution properly read would require the institution of more or less the entire agenda of "the new york times" op-ed page. and down through identity politics with its notion that pretty much everything in the law even secured transactions and bankruptcy law should really be thought of as charged with race and gender, and every other personal category. now, some of these were much more successful than others. i trace in the book both some of the successes as with the rights revolution and with some of the failures as with reparations and other areas where the ideas were so impractical that they fell
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flat on their face when they got out into the actual courts. but the story culminates or at least the latest episode of it is the rise of international human rights. and i believe that there is no area faster growing in the law schools than interest in international human rights. there are dozens of new centers and projects in litigation. at clinics and entities in the law schools. and if you are still thinking of international human rights as something that is primarily meant for dissidents rotting away in dungeons and against the sort of newspapers, the sort of regimes where they close down the opposition's newspapers, i fear that you are much behind the times. that is still part of the agenda, and yet there is much, much more as you can see if you go to many of the university sites or to groups like human rights watch and amnesty international where you are just as likely to see articles about the need for changes in domestic
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violence or sexual harassment law than for quotas in the right to health care, the right to minimum income, the right to collective bargaining, the right to be free of hate speech depending on which group you go to. and this has been creeping into american discourse in a varian oi -- variety of ways, primarily through the influence of legal academia. and some of you remember earlier this year when a united nations panel criticized a -- the united states as lacking in human rights and violating human rights, it was dozens of different things the u.s. was doing wrong often by not having a big enough government. and the obama administration's response to this, i thought, fascinating because prominent in their response was it's so unfair for the u.n. to say the u.s. is systematically violating human rights in the right to
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health care, for example, because last year we passed obamacare and took a giant stride towards right-sizing our international human rights obligations in the health care area. this falls into the category of reassurances that actually leave me less reassured. i find it bothersome. i think that would have been an additional reason to vote against obamacare if people had argued publicly that it was required for our international human rights obligations. similarly, in the controversy in wisconsin in recent weeks, i wish i had a dollar for every time someone from legal academia has argued that what governor walker did there in repealing some of the old public union rights actually was a violation of international human rights. that's been very widely argued and should soon turn up in litigation. so there's a pattern here. much as it was preached in the 1970s that the u.s. constitution required, if properly read, the court
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enforcement of the agenda of "the new york times," so now that it's increasingly argued that international human rights properly applied -- still somewhat vague as to how this will happen -- required this same new york times editorial page agenda. it gives the government more to do, and in that it is very much like most of the other ideas i talk about from legal act acade, you know, up to that point it just sounded like most lofty ideas, give the government more to do. but it gives specifically lawyers and judges more to do which was not always, and it was actually not always fdr's view that litigation should have a bigger role in society. it in particular gives legal intellectuals more to do because they're the ones who will often be listened to when we decide to result everything through legal processes rather than through legislatures or, you know, other ways of doing it friedrich
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hayek, i think, would have understood the world's power of yet another genre of intellectuals who have arranged things in such a way as to make their own abridgments more influential and important. it is certainly good news for the graduates, it is perhaps even better news for the in-demand faculty. i'm not so sure that it is good news for all the rest of us. thanks. [applause] >> thank you, i'm going to ask -- remind you all to wait for the microphone especially since we have, we're recording this both for heritage and for our c-span guests. and, please, state your name and identify any affiliation before you ask your question. and keep it to a question. well, i said i would mention my one criticism, and walter's actually touched upon it.
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although i don't -- i think that his original idea for the title maybe wasn't the best either, "ten bad ideas from the law schools," i'm not thrilled with the title that he chose, so i'm going to ask a very pragmatic question. it's not a screed, so it doesn't deserve that title. one title that might sell but be misleading is how law schools are destroying america. so i don't think that would have worked either. but do you mind telling us what the process is to focus group a book title? how you settled on this one, maybe whether i have any talent or i'm all wet with your title? >> well, first, first thought you're absolutely right. i did not want to write a screet, and it's not easy to come up with titles. i was thinking, i'm afraid, of,
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in part, the school for scandal as a phrase from restoration comedy in part of the lord of misrule who was carted around public festivals to make fun of the high and mighty. and i wanted to make fun of the high and mighty. and partly i was looking for words that had not been overused. and how blank is destroying america has lost all shock value aside from signaling screet. misrule is still a word people haven't been using in titles, so that's as unfocus groupie a way as i can think of.ijç=$
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>> a very different group, namely the ford foundation in particular starting in the 1940s and ooh 50 and later -- '50s and later joined by philanthropies, they were plowing in vast amounts of money and a great deal of clever organizational skill into making the law schools as they saw it more socially conscious, introducing various activist themes, sometimes highly successfully, sometimes not so. but they were working more or less on their own, and i suppose that if more conservative libertarian donors had been making a similar effort, you would have seen whether university administrations would have let it in. it should be said parenthetically that the law and economics movement did spring up and had very considerable influence, as it continues to have, as kind of a counterweight to some of the bad thinking in some areas. that having been said, it's only a partial counterweight, and law
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and economics itself is very ideologically mixed which is appropriate because people can take economics in many different directions. i think it would make sense for people to, who disagree with the directions, to spend a lot more time thinking about it because currently their voices are scarcely heard at all. i mentioned richard epstein, he has to be used in six or eight areas as the only recognizable person left of center because there isn't anyone else. he's great at doing it but, please, give him a break. [laughter] yes. >> my name is paul, and my question is, i assume that this isn't going to fall of its own weight. we'd like to think that it would, but in a commentary article which i've read and from your remarks to today, it sounds like the forces to perpetuate this are very powerful. so it's not going to fall of its own weight, what is to be done?
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can it be influenced at the -- can lawyers, graduates of law school try to use their economic weight, try to collaborate with other like-minded alums to pressure their law schools? and if not, what is to be done? is. >> well, there's several different questions to disentangle here. first, as far as the influence at the outside we are at a moment of crisis for the economics of law schools that is causing a great deal of rethinking of what they should do. not necessarily an ideological rethinking, it is, in part, a rethinking of why is there such a gap perceived by law firms and others who hire new law graduates between what they've been trained to do and what they will actually wind up needing to know in practice. and that serves as a very significant break against the pursuit of completely fruitless theory. and, indeed, one of my themes in the book is that we hit bottom years and years ago. law schools have been tending to improve not only in ideological
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diversity in recent years, but also to the extent with which they are connected to real life problems. the age of french deconstructionism was felt there too, but if you can't get people to hire your graduates, you are going to de-emphasize those courses. and the -- so for better or worse, and you see one jump ahead, you see this is actually worse from the standpoint of many in this room. now they are more successfully policy-oriented. they are beginning to have a more successful influence on how government operates than they did 15 years ago, and, of course, a lot of that is through people like elizabeth warren and tim wu who many of us in this room disagree with. increasingly, through blogging real-world-oriented scholarship, you have much more effective liberal forms, styles of being a law professor than you did back in the days of critical legal studies and critical race theory. there's the second and not that
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closely-related question of where should a student want to go for aless-than -- less-than-lopsided type of faculty. and many people i know who are confident in their own ideas are happy to go to a place where there is relatively little support for them. there is now the george mason school of law in the d.c. suburbs here which, as a brilliant market strategy, went out and scooped up a lot of conservative and libertarian faculty who were being undervalued in the types of offers they were getting elsewhere has risen rapidly in the rankings. i hear -- back to rankings again. and, yet, by almost any standard it's easy to get discouraged about some of the trends, some of them are also self-correcting to some extent in that there is
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criticism. alan derek wit with whom i disagree on many points said everyone sees diversity as getting more of themselves. and hiring is like a club in which you get hired by the people who are already in the club. that having been said, there is almost no comparison in the federalist society has been important between the number of young faculty who would agree with many of us in this room and the same sort of survey had you done it 15 years ago. no comparison, there are so many more of them now. yes. >> my name's ian drake. following up on that response, you noted the federalist society. do you think then that one avenue for a counter to the dominance of the left is only going to come from the elites themselves in the elite schools? in other words, in order to get hired at any law school with the
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exception of some of the for-profit schools, you have to have clerked for a federal judge, and you have to come with a braman degree. therefore, the only points within the academy are going to be other people from the elite schools. do you agree that that's, essentially, the only front that's open to countering this trend? >> i think that's very well put. and the problem of bad ideas at harvard or yale will be met by there being harvard and yale-caliber scholars with other ideas has, indeed, been happening. it isn't a matter where if you arrange ten more ordinary law schools together, you will somehow balance out one harvard or berkeley or other top ten school. and ideas have consequences. i mean, we always find different ways of getting back to that same point which is that one must have ideas that are qualified to best the other
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side's idea in debate. spreading money here, having great organization there, you know, networking in a third place are all helpful, and they all may help people who deserve to succeed from falling by the wayside. but nothing will substitute for the raw talent. yes, christine from cei in the front row. christine hall. >> hello. so i'm wondering what you think, what your thoughts might be on whether some of these sort of kooky and very wrong-headed ideas in liberal academia actually translate to lawmakers, you know, for example, state attorneys general or members of congress or state legislators. do these ideas, in fact, have an influence and become bad law? >> yes, i think they do, and i give various examples in the book. i could easily have filled up several books with other examples. in areas that i know cei's interested in through its work
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on things like the tobacco settlement whether it be the proper role of state attorneys general, the proper role of statute of limitation which became relatively unpopular in the academic literature and without the overthrew of statutory litigation, you would never have had most of the tobacco lit case and -- litigation and things like that. when it ceases to be respectful to defend statute of limitation, sovereign immunity, various other old limits on liability, when it stops being respectful in the law schools, there will still be some judges who resist because there are a lot of very strong-minded judges, especially these days on the supreme court. but most judges are somewhere in the middle, and if they've got, you know, plausible grounds for ruling either way, they don't want to be attacked in 30 law review articles over the next -- i mean, it works this way on things like buckley v. vallejo
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and citizens united. at the moment we have this strong-minded bunch of supreme court justices, replace them with ones -- they don't have top of opposite points of view, but just ones who are a little more susceptible to academic and editorial opinion, and you lose those decisions. did we have some other questions? yes. >> david bernstein, george mason, the famous george mason. [laughter] one thing, you pointed out that law schools have become at least somewhat more ideologically diverse which i agree with in the last 15 years or so which is about how long i've been teaching. that has not happened, from what i can tell, in history, political science, sociology, anthropology and so forth, and my textbook theory is that this is in part because we have a supreme court and judges who are appointed by republicans, and they're taking these ideas
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seriously, faculties can't just write you off as a nut. i'd be interested why law has actually had a little bit of the shift where other discipline seem immune to any kind of ideological diversity. >> that's an interesting question, and on the tendency of law schools to not be as ideologically extreme as anthropology or sociology, that's pretty well borne out in the surveys that have been done. those two disciplines and some others are even more lopsided than law which takes some doing. the law has been the most influential of them, and i think you pose a very interesting first cut at why professors who particularly if they spend to specialize as so many do in big national issues, if they can't predict what the u.s. supreme court will do because they can't make themselves think even in a hypothetical way as a scalia or an alito does, then they're not
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going to be terribly good at entertaining the court's doings. all they can do is rail against it. so, indeed, it is intended to reward professors who may, indeed, be of liberal premise, but at least take the time to treat seriously the ideas that differ from their own. and be, indeed, you have seen quite a substantial body of liberals who have made an effort to understand conservatives from elena kagan on to many other institutions as well. and i'm not sure it's only thought there may be some feeding in from the fact that lots of very bright people go into law for many reasons other than changing the world through politics, and they need to be catered to. the views of lawyers generally in elite practice after they get out of law school are more democratic than the american average but are not nearly as left wing as the law schools. so, you know, there are a number
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of influences on them because law is inevitably going to be more real world constrained than sociology or anthropology. no offense to those, but it is. >> [inaudible] >> oh, um, in the back row. lee lieberman with the federalist society. >> hi. i was wondering what kind of reaction you've been getting from people in these law schools to the book. [laughter] >> um, i just began touring on it a few weeks ago, and so i have been to, i believe, indiana, illinois and minnesota so far. and the response has been wonderful. now, maybe it's self-selecting. maybe the ones who hate my guts wouldn't be seen dead in the same room. but the faculty very often agrees with much more than we might expect of the, both the
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critique and the possible ways of improving things. the students, maybe they're mistaking my talks for talks about the general law school crisis of why it's so hard for them to find jobs, but for whatever reason, they've been showing up in larger numbers than when i, than what i expected. and i mentioned that we're at a moment economically where people are ripe for rethinking things. there is a lot of doubt as to exactly how they will be rethought. possibly, the ranking system will get shaken up because of the inspired law firms that you sometimes do better hiring from a number 35 school than hiring from a higher-up one. possibly, it will be the fact that law schools are so darn expensive, and some law schools appear to be able to charge much less and offer just as good an education. one way or another, there are a lot of people who can gain in a tangible way by coming up with a better method, an issue that has
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particularly come up for debate is would it help to blow up the accreditation system? and i complain in the book that a lot of the trends that i dislike are reenforced by the accreditation agencies, the aba and the abls which require a commitment to clinical education whether or not you think it would work at your particular school. it requires certain types of research orientation and on down the line. it has been argued by people i respect that blowing up accreditation will just present us with a completely different set of problems. at least they'll be different ones, and we can work through that. one way or another, they're not working well. even from their own premises. more questions. there was another one in the back row, or has it been answered? okay. >> brian walsh from the heritage foundation. this week the weekly standard has an article about the declaration of the principles of
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an academic freedom, are you familiar with that document? >> not very, no. >> okay. what i'm wondering is what the declaration done, and it's been touted by others for a while, it lays out standards and principles for what academic freedom looks like. it would actually give faculties, for example, a guidance on how they should be making decision about tenure, about who to accept, what articles they should be promoting, those types of things or at least being open to. what do you think about some type of standards where the academic community actually -- not that it's imposed from outside, but it adopts those standards voluntarily, and then it's used by faculty and other members to point to and say, you know, i'm not being afforded my academic freedom whether it's in tenure or whatever else it might be, do you think that would be helpful to combat that problem? >> i have considerable skepticism about efforts to promulgate general principles of that sort, and one of the earlier questions, by the way, was about what can outsiders do in order to change the ideological complexion.
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again, it quickly becomes at odds with the freedoms that act academics expect if it winds up being a state legislature, for example, putting pressure on a state law school. we note that's happened in some instances, law school clinics. any general set of rules is going to be used as both a sword and a shield. they will be used as some people to say the principles are not to be interfered with, it will also be used aggressively by, you know, people who want to defend bad, you know, strength and the proper roles the professor's in and so forth. i guess my general sense of the principles of academic freedom is we're better off if they don't change very rapidly, and if they remain decentralized enough so that you have a variety of different institutions in which different kinds of act academics can flewish, some of which are almost impossible to pressure
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from any direction, others of which are more open to, you know, some signals, some public opinion that they're often going off in the wrong direction. not a very useful answer, but i never claimed to have one. let me mention, by the way, being at heritage that if you were interested in my teems about inter-- themes of international human rights law as a flavor of the decade, heritage has a tremendous program calling attention to the latest developments. get on the mailing list, and you will learn a lot. yes. in the back row. >> yes, thank you. my name is bill otis, i'm an adjunct professor of law at georgetown law center just down the street, a right-wing freak show. [laughter] my question is related to some that you've been asked earlier, and it's in three parts. lt have you noticed among the deans -- have you noticed among the deans at any of the top law schools a recognition on their
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part that there is an imbalance or the extent of the imbalance? second, do they regard that as a problem if they recognize it? and, thirdly, is there anything like a serious plan among any of them to redirect the imbalance? >> i wish i could read their minds better than i could. i noticed a few years ago when adam liptock at "the new york times" wrote a good article on this general issue, this set of debates, that he was not finding deans of law schools or highly-placed figures of other sorts who were actually defending the imbalance and saying, you know, darned if you're going to change what we do. we're going to keep filling up with people who think like me. there was some recognition, and certainly there are individual deans that we all know have, you know, done wonders to make their
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faculties more diverse often at the price, if it is a price, of bringing in people that they disagree with. but the way i think of deans is that they don't agonize about anything any more than they have to because their time is too spoken for by meetings and fundraising. and so unless there is discontent on the outside that they have to pay attention to, it's easy to move on to the ten things that they know they have to worry about instead of adding an 11th one that no one has pestered them for months about. and i think that's probably how a plurality of the deans actually treat the intellectual diversity issue. fred again. fred smith. >> a follow-up to dave's earlier question. the anthropologists, sociologists, in some way they're less connected to the real world, but the law is very
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much embedded in the real world, economic world. and yet it does appear you see a dramatic asymmetry between the economics sphere and the federalists, heritage, cato, cei, others respond to these issues as a way that i think the public law is established, trial lawyers, union lawyers, human rights lawyers and so on and their intellectual allies. one seems to be strategic, looking for precedence, the other seems to be winning cases. is there some way of raising the strategic awareness of our side to recognize we're in a culture war, and we are fighting it tactically and defensively? >> well, fred, where you get me going is you talk about culture war as a metaphor. i prefer culture piece. but the question is -- culture peace. but the question is why the asymmetry. and let me pursue that for a
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moment because i spent a fair bit of time in the book talking about how if you move from groups like the american civil liberty union to law school clinics and programs in adjacent areas, you find a whole lot of overlap. you find cooperation, you find sometimes a revolving door of highly-qualified personnel, you find that the publications and the round tables and so forth are constantly informing many of the key academics as to what the aclu has been thinking this week and vice versa. you have tremendous cooperation. would we actually want that cooperation between groups that are the ideological opposite numbers of the aclu, or would that just make law schools yet more polarized and more ideological? i have my doubts that they should jump headlong into an equally cozy relationship with conservative or libertarian think tanks or much less with
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groups that might have lobbying agendas which would really be potentially disastrous. and so the question is, therefore, should we tell them, you know, stop saying the aclu, some dating the aclu four times a month and at least date around to a variety of groups. [laughter] i don't want them to feel married to any of them, though, if you see what i mean. yes. >> let me ask the concluding -- why don't you stand up here or stay here to the concluding question. since i didn't know why john who introduced me was, needed to mention my service on the u.s. commission on civil rights, but then you explained the answer. i see a new of my colleagues here. there -- few of my colleagues here. there have been several who have been agitating to abolish the u.s. commission on civil rights apparently because we no longer -- american civil rights is passe, and they want to replace it with a human rights commission. so if you wouldn't mind
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explaining what is it that is so attractive to the so-called progressives about human rights? i'll suggest one or ask you if one is, you know, civil rights actually has some limits, but there are no limits to what you can dream up in the human rights realm. >> no. and i'm also highly alarmed by the effort to rename and rebadge things from civil rights to human rights. as you hint, civil rights we conceive of as a bunch of categories having to do with minorities or others in if potentially oppressed -- in potentially oppressed groups. not a member of that group, probably not a civil rights issue. human rights is meant to encompass that plus rights of health care, labor, welfare and many others. once rebadged as human rights, it is much easier to bring in the literature and a pronouncement of the various international groups that followed this.
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one thing that wouldn't change is the tremendous influence of legal academia because in both the civil rights and the human rights area, basically, every new idea that comes along has been vetted through a long literature in the law reviews. civil rights is a classic area where the body of opinion represented so widely in the country and in this room which is that genuine equality of opportunity means not discriminating by race or gender. this is not -- this has not god a large body of -- got a large body of academics behind it. it's one of the reasons why civil rights law is so incredibly hard to reform. it becomes even worse if you rebadge it as human rights law. >> i'd like everyone to join me in thanking walter. [applause]
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>> for more information visit walter olson's web site, overlawyered.com. >> host: well, after 27 years of operation, the well known washington, d.c. independent bookstore politics and prose has been sold, and we're taking this opportunity on booktv to talk with the new owner, co-owner is bradley graham, formerly of "the washington post." mr. graham, congratulations to you. what made you buy an independent bookstore in 2011? >> guest: well, thanks very much. lissa and i are very excited about taking over at politics and prose. we know as journalists and authors and, in list -- lissa's case a former senior government staff member, we are very, we've been very involved in contributing in various ways to the washington community, and we see this move to politics and
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prose as part of the same sort of thing. it's another way for us to continue to contribute to the community. beyond that, we really believe in what the store's mission has been. you know, it's much more than a bookstore. it is, it is a community institution, it is a forum for debate and discussion, and we, lissa and i believe very much in the need for such forums. >> host: and, of course, mr. graham is referring to his wife, lissa maas ca teen, who also is the new co-owner of politics and prose. mr. graham, what changes do you think p and p needs to make in order to stay competitive? >> guest: you know, there's a lot about politics and prose that is very strong. the sales are very strong, it has a very loyal customer base in a time when the industry has
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been facing threat from e-books and declining readership generally. sales at p and p have continued to rise. so first and foremost, lissa and i want to preserve everything that has made politics and prose a success. that said, in order for the store to remain relevant and influential and technologically up-to-date, there are going to have to be some changes. carla and barbara have recognized that over the years. the store has, it's evolved under their leadership. but just what additional directions lissa and i hope to move the store in we're still formulating. we are only now beginning the process of talking to the staff, getting some of their ideas. we'd like to survey opinion among politics and prose's customers.
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so this will be an evolving process for us in terms of deciding what, what new directions and what initiatives to undertake. mr. graham, when you were researching whether or not to purchase this store, i read that you visited a lot of independent bookstores around the country. did you find any similarities among those independent bookstores? >> guest: i did. you know, for all the, the disappearance of a number of stores in the industry in the recent years, what's impressive about the business is that a number of bookstores have survived and remain strong. and i was interested in seeing why that is. so i visited a number around the country, and i found some common threads. i found that those that are continuing to succeed have very strong community roots.
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they have very dedicated owner/operators who are, who have been trying a number of different initiatives. i did not find that anybody anywhere has hit on a kind of home run solution to, to keeping their store successful. it's more a matter to borrow a baseball analogy of hitting singles and doubles and getting on base. and in looking at politics and prose, i came away reassured that this store has many of the attributes for success that other stores around the country have, particularly that very low call -- loyal customer base, a large number of avid readers and a great reputation that still has a lot of unrealized value in
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it. >> host: now, barbara meade and the late carla cohen were very well known for working the floor at politics and prose. if, if booktv viewers who have come to p and p because they've seen it so often on our channel come to visit politics and prose if they're in washington touring, will they be able to meet you and lissa muscatine? will you be on the floor? >> guest: sure, sure. lissa and i intend to be at the store full time. but, you know, one of the other great strengths of politics and prose is its staff. we are inheriting a tremendously talented, very deep bench of experts about books of all kinds. and they have participated in introducing a number of the authors, they are the reason that so many customers come to the store seeking their advice. and they will, we are counting on many

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