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"Pre-law Prerequisites: A Guide to the Post Socialist World" by Michael Debow and Roger Clegg, Policy Review, Winter 1994.

It has been four years since political and economic revolutions began to unravel the Eastern Bloc. The vindication of democratic forms of government and free-market economies, over the tragic failures of statism, could not be clearer. One might have expected the collapse of communism to have a significant effect on U.S. politics, leading us to reconsider and restrain the seemingly inexorable growth of government in our own country.

Obviously, this has not happened. Instead, the "post-socialist" American political environment is pregnant with contradiction. For on the one hand, nearly everyone acknowledges the superiority of private-property, market-driven economic systems. But at the same time, the political process in the supposedly triumphant societies of the West is resulting in larger and larger governments and tax burdens, and more extensive regulatory controls. As Nobel laureate James Buchanan puts it, socialism is dead, but Leviathan lives. We submit that a serious student of law and the American legal system must be able to grapple with this central paradox of our time.

Nonetheless, many students will graduate from universities for which the collapse of communism was and remains a non-event. The traditional pre-law reading lists suffer from a similarly profound gap: They do not include readings to help students understand the political and economic systems in which law and legal practice are embedded. We offer a reading list to equip students with the tools to understand the post-socialist political economy in which they will live and work.

MARKETS OR POLITICS

Our political economy constantly chooses between two alternatives: leaving an area of human activity to the private marketplace, versus converting the activity to one dominated by public, political dialogue and controls. Although our governing institutions presuppose a limited federal government and a free-market economy, the administrative state built on this foundation is, increasingly, neither limited nor laissez-faire in its ideology.

People in the newly liberated countries of the former Soviet empire face the choice between markets and politics in its starkest form. But those of us in the West also see choices between markets and politics debated on a daily basis. With the advent of the Clinton Administration, this debate has taken on an increased urgency, as more and more of what was once in the private sector becomes the target of collectivization. Unfortunately, David Hume's dictum, "[it] is seldom that liberty of any kind is lost all at once," is likely to take on new significance over the next few years.

THE NEED FOR A LIST

To understand this environment, a student must understand the markets-versus-politics debate. He or she must also appreciate that the failure of socialism was not only economic, but political and moral. The prerequisite for such an understanding is a thorough grounding in the principles of private property, freedom of contract, and limited government—and their critical importance to our way of life.

Unfortunately, many undergraduate courses of study fail to provide much help in this regard. Law students who majored in the humanities—a significant number—may have avoided taking any courses in economics or political philosophy. Many law students with social science backgrounds have encountered professors indifferent or hostile to the lines of inquiry necessary to understand the consequences of substituting politics for markets. Even law students with business backgrounds often have had no systematic introduction to the comparison of markets and politics.

Traditional pre-law reading lists do not address this deficit. Consider the list of "Prelaw Readings: Books of Interest" contained in the 1993-94 edition of The Official Guide to U.S. Law Schools, published by the Law School Admissions Council (LSAC). The four-page list contains 117 titles divided into four categories, but offers little real guidance to the pre-law student. In what reads like a parody of unstructured undergraduate education, the Guide explains that many of its titles "are not necessarily recommended" to the student, and explains further that [it] will be up to [the student] to search out the titles that pique your interest and make your own determination of their worth." In addition to this do-it-yourself approach, the LSAC list (and others) overemphasizes the idea of law as a tool for social engineering, and downplays (or ignores) more conservative views of law as furthering private property rights and limiting government. This is particularly true with respect to constitutional law. The reading list's emphasis mirrors the tendency of entering law students to overestimate the importance of "con law" to their understanding of other areas of the law; indeed, many seem to think that constitutional law is the foundation for all other areas of law—thus confusing public and private law, as well as the public and private sectors.

THE IDEOLOGY OF LAW SCHOOLS

The student interested in the clash between politics and markets—between the public and private sectors—should begin his self-education before beginning law school for two reasons. First, time is short once one is in law school. The conscientious law student works from day to day, assignment to assignment, through a flood of law and law-related materials. Time for reflection on the material is, sadly, quite limited.

Second, many law school faculty members are not particularly interested in exposing their students to the pro-market side of the markets-versus-politics debate. It is no secret that the dominant ideology in U.S. law schools is left/liberal. Yale law professor Stephen Carter, who describes himself as slightly left of center, observed in 1991: "[Both] branches of the legal profession—the bar and the academy—are to the left of the American public." In blunter terms, Harvard Law School professor Mary Ann Glendon recently declared the "legal academic establishments" to be "woefully out of touch with American culture and political life."

The rise of feminist legal thought and the neo-Marxist "critical legal studies" movement, along with the recent adoption of speech codes by some law schools, provide the most exotic examples of this truth. But relatively few law professors actively engage in far-left activity. Instead, most are better characterized as members of what University of Minnesota law professor David Bryden calls the "respectable left"—the type of liberalism identified with the activist elements of the Democratic party.

Thus, the same law faculties now engaged in a quest for "diversity" in their hiring show a remarkable lack of diversity of political/economic philosophy and opinion. Consider Professor Bryden's further claim, made in the Spring 1991 issue of The Public Interest.

How many conservatives teach politically controversial subjects in our major law schools? If we are talking about orthodox conservatives of the National Review type, the answer is that our leading schools have hardly any. In law-school terms, a "conservative" is anyone who has publicly dissented from any tenet of liberal orthodoxy—for instance, by expressing doubts about judicial activism. Even by that exceedingly latitudinarian definition, most of the top faculties have only a couple of outspoken conservatives.

Much evidence supports this view of the narrowness of law faculties. In 1991, the Washington University Law Quarterly published the results of a public opinion poll of law students, funded by the American Bar Association. The poll showed the disturbing negative effects of "political correctness" on law students' willingness to engage in certain kinds of legal and political debates. It also contained the following accounts:

The written comments to the Law Student Survey indicate that students do not perceive faculties as politically diverse. Many students commented that faculty tend to fall on the far left end of the political spectrum. Anecdotal evidence also suggests a lack of political diversity. One professor, who prefers not to be identified, tells of talking with the associate dean of a law school, who, after lauding the diversity of the school's faculty, conceded that none of the forty faculty members voted for the winning candidate in the 1988 presidential election. The same professor reports that during a visitorship at a law school in a Republican-leaning state, he was surprised to learn that in a faculty of nearly thirty, there was not a single Republican.

In addition to such informal observations, one can glean hard evidence of the extent of the legal professoriate's leftism by looking at the fight over Robert Bork's nomination to the Supreme Court. One of the country's most brilliant legal minds, Judge Bork had established his credentials as a conservative defender of limited government, judicial restraint, and original intent—legal principles that tend to stymie the liberal impulse to legislate through judicial fiat.

As University of Texas law professor Lino Graglia aptly put it, law professors were "overwhelmingly—one could almost say hysterically—in opposition" to Judge Bork's confirmation. Of the nation's 5,363 law professors, an amazing 1,839 "voted" on the Judge Bork nomination, most by signing letters of support or opposition. Of them, 1,742—or 94.7 percent—opposed Judge Bork, and only 97, or 5.3 percent, supported him. Thus, the ratio of actively anti-Bork to pro-Bork law professors was approximately 18 to 1. It is important to stress that this opposition to Judge Bork extended up and down the law school pecking order.

Thus, law students who want to explore the classical case for markets over politics will likely find few kindred spirits among their professors. Self-help is necessary. Study of the titles that follow will introduce students to a number of first-rate scholars—many of whom are "outside the mainstream" of American legal academics, in the same way Judge Bork was deemed "outside the mainstream" of the current legal academy. This guide to the conservative legal counterculture should serve the student well as he or she enters law school and, ultimately, practice.

THE LIST

Most of the books and articles on our list are short and very readable, require little or no technical background, and address both the economic and political principles that the post socialist lawyer must appreciate. Most of the books are available in inexpensive paperback editions.

Our list can be used by students in the summer prior to their first year in law school, or by undergraduates at an earlier point in their studies. Indeed, any serious student who works through this list should gain a good, basic social science education for the post-socialist era.

I. Law 101 The classic book for beginning students of the law is Edward Levi's An Introduction to Legal Reasoning. We predict that Richard Epstein's forthcoming book, Simple Rules for a Complex World, will eventually enjoy a status similar to Levi's. Levi and Epstein provide indispensable introductions to the genius of the traditional common law system. Anyone serious about understanding the U.S. legal system should read these books.

A good article-length discussion of some of the themes covered by Levi and Epstein is Justice Antonin Scalia's 1989 Holmes Lecture, "The Rule of Law as a Law of Rules." The work of two European scholars greatly repays serious study. Bruno Leoni's Freedom and the Law is indispensable. Somewhat more demanding, Nobel laureate Friedrich Hayek's multi-volume Law, Legislation and Liberty, particularly Volume 1, Rules and Order, is a masterpiece.

II. Economics 101 Law students must have some familiarity with basic microeconomics—the study of the marketplace behavior of business firms and consumers, premised on self-interest as the primary determinant of most human action.

Students with little or no background in microeconomics should read the late Henry Hazlitt's classic text, Economics in One Lesson, or a more recent treatment by James Gwartney and Richard Stroup, What Everyone Should Know About Economics and Prosperity. James Doti and Dwight Lee, The Market Economy: A Reader, contains excerpts from the most significant writings in classical liberal thought and market analysis. Its inclusion of Frederic Bastiat's "Candlemakers' Petition" alone is worth the price of the book. It also contains an excerpt from Friedrich Hayek's 1945 article, "The Use of Knowledge in Society," which we recommend that the student read in its entirety.

As a case study of the application of microeconomics to the "real world"—or, at least, the world he or she is about to try to enter—the student should look at two recent articles that try to sketch the business realities of the legal profession: "Why Are There So Many Lawyers? Perspectives on a Turbulent Market," by Richard Sander and Douglass Williams, and "the Market for Lawyers," by Sherwin Rosen.

III. Applied Economics: "Law and Economics" The economic approach to law offers the student a map to navigate the maze of the law school curriculum.

The use of microeconomics to understand the basic areas of common law—property, torts, and contract—is brilliantly displayed in Mitchell Polinsky's short textbook, An Introduction to Law and Economics. In addition, Polinsky offers very clear economic analyses of law enforcement decision making (chapter 10) and litigation (chapter 14) that will shed much light on the legal system for the beginning student. Polinsky assumes that his reader has no more than a bare acquaintance with the key concepts of microeconomics, and does not use math any more complicated than simple arithmetic. Law students and practicing lawyers can benefit from a systematic understanding of strategy and strategic behavior. A very good (and not mathematically demanding) introduction to the area known as "game theory" is Avinash Dixit and Barry Nalebuff's Thinking Strategically. Their explanations of such concepts as "decision trees" and the "prisoner's dilemma" are very useful to attorneys in thinking about such puzzles as litigation and negotiation strategy and the likely pattern of government enforcement activities.

After Polinsky and Dixit/Nalebuff, students may wish to turn to other, more technical treatments of law and economics. As a first step, we suggest Judge Frank Easterbrook's article "The Court and the Economic System." Ultimately, the student should aim for a level of understanding that enables him to use Judge Richard Posner's The Economic Analysis of Law, an encyclopedic treatment of legal subjects using economic reasoning, in connection with his law school class preparation and review.

IV. Applied Economics: Public Policy and "Public Choice" Most public policy debates can be productively analyzed using microeconomic reasoning. The classic treatment is Milton Friedman's Capitalism and Freedom. Given its age—it was first published in 1962—this book's discussion of such issues as school vouchers and welfare reform demonstrates the durability of economic analysis in addressing public policy issues. One of the most important developments in economics in the last 40 years is the extension of microeconomic analyses to questions of government and politics. This branch of economics, pioneered by scholars such as James Buchanan and Gordon Tullock, is known as "public choice." It is increasingly clear that lawyers should understand the rudiments of public-choice theory. A very good introduction to this subject is contained in Failure and Progress, a recent book by Dwight Lee and Richard McKenzie. Chapter 7 sets out, in a very short space, the basic public-choice ideas that predict the seemingly inexorable growth of government and its attendant inefficiencies. In brief, public choice explains government growth by focusing on the efforts of small, well-organized interest groups to seek benefits (or "rents") from government, at the expense of the public at large. A student who understands this analysis of "rent-seeking" behavior has a very long head-start over others in understanding the dynamics of government in the post-socialist era.

In a political environment dominated by rent-seeking, what is the outlook for the ideals of limited government and free markets? In a recent article, "The End of History and the New World Order: The Triumph of Capitalism and the Competition Between Liberalism and Democracy," Jonathan Macey and Geoffrey Miller argue that "the central historical question of the twenty-first century may well be whether capitalism can survive the interest-group proclivities that threaten private property rights in advanced countries." Their prediction of the outcome of the markets-versus-politics tug-of-war is rather grim:

[In] most of the world's established democracies, particularly the United States, liberal defenders of property rights are fighting a losing battle to prevent the public sector, where democratic values find expression, from destroying the private sector, where the liberal value of free economic activity finds expression.

For Macey and Miller, the fundamental issue we face in the post-socialist world is "what sort of regime will best protect economic exchange and economic rights against the ravages of special interests…"

V. Ideological Visions, Public Policy, and Law If we had to recommend only one book for a prospective law student seeking to understand the nature of legal and political debate in this country, we would unhesitatingly name A Conflict of Visions, by Hoover Institution economist Thomas Sowell. Sowell makes the case that there are two perspectives on human nature: one that it is essentially "unconstrained" (and thus subject to manipulation via various schemes of social engineering) and one that it is "constrained" (and thus resistant to the perfecting efforts of the government). Sowell writes very clearly, and introduces the reader to the pantheon of classical liberal thinkers (as well as the lot on the other side of his divide). For another view of this aspect of human nature, read Karl Brunner's article, "The Perception of Man and the Conception of Society."

After reading Sowell and Brunner, the student will probably be interested in how the constrained and unconstrained visions manifest themselves among law teachers. He should take a look at two short articles by University of Chicago law professors: Michael McConnell's "Four Faces of Conservative Legal Thought," and Mary Becker's "Four Faces of Liberal Legal Thought." These two pieces serve as a sort of field guide to law professors' ideologies.

In case the student has any doubt that the far left wing of the legal professoriate is indeed pretty far to the left, he should check Robert Clark's address entitled "In Critical Legal Studies, the West Is the Adversary." Clark should know: he is now the dean of the Harvard Law School, which houses a significant number of "Crits."

Neoconservative thinkers are an important intellectual force on a number of law-related issues (such as racial quotas and the unintended effects of government regulation), and are especially interesting because they have migrated from the unconstrained to the constrained view of human nature. The godfather of the neocons is Irving Kristol. Policy Review recently published an excellent tribute to him, "Battier for the Republic," and some of his best work is collected in Reflections of a Neoconservative: Looking Back, Looking Forward.

Students interested in the connection, if any, between contemporary moral philosophy and the law should look first at Arthur Lefts article, "Unspeakable Ethics, Unnatural Law," then at Phillip Johnson's more recent "Nihilism and the End of Law."

VI. Constitutional Law There are two kinds of constitutional lawyers: those who take the text of the Constitution seriously, and those who don't. Much of what is wrong with the American polity today is traceable, directly or indirectly, to the latter, who greatly outnumber the former. Those who wish to bolster the ranks of the good guys must begin by reading…the Constitution. Carefully. And repeatedly. This is not at all an unpleasant undertaking, because there are few texts that better reward careful study.

The other two great American contributions to political thought are the Declaration of Independence and The Federalist Papers. There are 85 of the latter but, as Clinton Rossiter observed,

Those readers who do not have the energy and fixed purpose to make their way through the whole of The Federalist may wish to know that, by common consent of learned opinion, the following numbers are the cream of the eighty-five papers: 1, 2, 6, 9, 10, 14, 15, 16, 23, 37, 39, 47, 48, 49, 51, 62, 63, 70, 78, 84, 85 (ten by Hamilton, ten by Madison, one by Jay).

Of these, the three most indispensable for the aspiring lawyer are No. 10 (Madison's argument that the problem of "faction"—another term for interest-group politics—is best addressed by an extended republic); No. 48 (Madison's discussion of the need for separation of powers in the federal government); and No. 78 (the first of six numbers by Hamilton on the judiciary, with an often-quoted exposition of the doctrine of judicial review).

No one has made a greater contribution to conservative legal thought over the last generation than Robert Bork, and probably no one was more important in shaping Bork's thinking than his Yale Law School colleague, the late Alexander Bickel. In 1979, Yale named Judge Bork the first Alexander M. Bickel Professor of Public Law. On this occasion, Judge Bork eloquently and concisely explained his debt to Bickel in an address entitled "The Legacy of Alexander M. Bickel." Of course, Judge Bork set out his views on constitutional law many years later and at greater length in his book, The Tempting of America.

For those who want to explore the work of Bickel, his best book was his last, The Morality of Consent. Of particular importance there is Bickel's discussion of Edmund Burke. After this exposure, the student may be interested in a discussion of the difference between constitutional rules (and constitution-writing) and statutory rules (and legislation). "The Normative Purpose of Economic 'Science': Rediscovery of an Eighteenth Century Method," by Geoffrey Brennan and James Buchanan, argues that an effective constitution should assume that all human activity, in the market and in politics as well, is self-interested. (There is an obvious relation between this decidedly unromantic view of constitutional law and Thomas Sowell's distinction between constrained and unconstrained visions of human nature.)

If the student wants to read about the historical process that deformed many areas of constitutional law, we suggest four short articles. Three by Lino Graglia—"'Constitutional Theory': The Attempted Justification for the Supreme Court's Liberal Political Program"; "How the Constitution Disappeared"; and "From Federal Union to National Monolith: Mileposts in the Demise of American Federalism"—develop a number of historical themes, including the distortion of the criminal law by the Warren Court and its adverse consequences for our society. Richard Epstein's article, "The Mistakes of 1937," describes the damage done to the Constitution's protection of economic liberties by the Court's approval of New Deal regulatory statutes. As the titles suggest, Graglia and Epstein have vigorous writing styles that they use very effectively to proclaim their "emperor has no clothes" judgment on much of today's constitutional law.

VII. Comic Relief Pre-law reading lists often contain humorous pieces. Our suggestion is P. J. O'Rourke's Parliament of Whores, which spent several weeks at the top of the non-fiction best seller list in 1991. "The U.S. government," O'Rourke writes, "is a sort of permanent frat pledge to every special interest in the nation—willing to undertake any task no matter how absurd or useless." O'Rourke's language often is not something you'd especially want Aunt Minnie to read, but he is howlingly funny in his attempt to "explain the entire U.S. government." The book communicates a real understanding of public choice thinking as applied to a number of topics-and with a healthy dose of irreverent humor thrown in for good measure.

Reading conservative analyses of law and legal systems should enable pre-law and law students to confront Leviathan more effectively in the post-socialist world. Their efforts will be needed: The Clinton Administration faced over 100 judicial vacancies when it took office a year ago, more than three times the number awaiting Ronald Reagan in 1981. Thus, the power to shape the ideology of the federal courts for decades is up for grabs. It will require significant intellectual ammunition, and a healthy dose of courage, to divert the collectivist impulses in American politics and law. So, future lawyers, keep the midnight oil burning.

Pre-Law Reading List

I. Law 101
Levi, Edward H. An Introduction to Legal Reasoning. Chicago: Univ. Of Chicago Press, 1949.
Epstein, Richard. Simple Rules for a Complex World. Washington, D.C.: Cato Institute, 1993.
Scalia, Antonin. "The Rule of Law as a Law of Rules." University of Chicago Law Review 56 (1989):1175-1188.
Hayek, Friedrich. Law, Legislation and Liberty, vol. 1, Rules and Order. Chicago: Univ of Chicago Press, 1973.

II. Economics 101
Hazlitt, Henry. Economics in One Lesson. Glendale, CA: Crown Pub. Group, 1946, 1933 ed.
Doti, James L. & Dwight R. Lee. The Market Economy: A Reader. Los Angeles: Roxbury Pub. Co., 1991.
Hayek, Friedrich. "The Use of Knowledge in Society." American Economic Review 35 (1945):519.
Sander, Richard E. & E. Douglas Williams. "Why Are There So Many Lawyers? Perspectives on a Turbulent Market." Law & Social Inquiry 14 (1989):431-479.
Rosen, Sherwin. "The Market for Lawyers." Journal of Law & Economics 35 (1992):215.

III. Applied economics: "Law and Economics"
Polinsky, A. Mitchell. An Introduction to Law and Economics. Boston: Little, Brown & Co., 2d ed., 1989.
Dixit, Avinash K. & Barry J. Nalebuff. Thinking Strategically: The Competitive Edge in Business, Politics, and Everyday Life. New York: W. W. Norton & Co., 1991.
Easterbrook, Frank. "The Court and the Economic System." Harvard Law Review 98 (1984):4.

IV. Applied economics: Issues of Public Policy and Public Choice
Friedman, Milton. Capitalism and Freedom. Chicago:Univ. of Chicago Press, 1963.
Lee, Dwight R. & Richard B. McKenzie. Failure and Progress. Washington, D.C.:Cato Institute, 1993.
Macey, Jonathan R. & Geoffrey P. Miller. "The End of History and the New World Order: The Triumph of Capitalism and the Competition Between Liveralism and Democracy." Cornell International Law Journal 25 (1992):277-303.

V. Ideological visions, public policy, and law
Sowell, Thomas. A Conflict of Visions: Ideological Origins of Political Struggles. New York: William Morrow, 1987.
Brunner, Karl. "The Perception of Man and the Conception of Society: Two Approaches to Understanding Society." Economic Inquiry 25 (1987):367-388.
McConnell, Michael W. "Four Faces of Conservative Legal Thought." Univ. of Chicago Law School Record, Spring 1988, at 12-18.
Becker, Mary E. "Four Faces of Liberal Legal Thought." Univ of Chicago Law School Records, Fall 1988, at 11-17.
Clark, Robert. "In Critical Legal Studies, the West Is the Adversary." Wall Street Journal, Feb. 23, 1989, at A18.
Gerson, Mark. "Battler for the Republic." Policy Review, Fall 1992, 50-57.
Kristol, Irving. Reflections of a Neoconservative: Looking Back, Looking Ahead. New York: Basic Books, 1983.
Leff, Arthur A. "Unspeakable Ethics, Unnatural Law." Duke Law Journal (1973): 1229
Johnson, Phillip E. "Nihilism and the End of Law." First Things, March 1993, at 19-25.

VI. Constitutional law
The U.S. Constitution. (Pocket-sized copies are available from the U.S. Government Printing Office (202-783-3239) for $1.00.)
The Declaration of Independence.
Hamilton, Alexander, et al. The Federalist Papers. New York: New American Library, Mentor Books, 1961 (especially Nos. 10, 48 & 78).
Bork, Robert H. "The Legacy of Alexander M. Bickel." Yale Law Report, Fall 1979, at 6-13.
Brennan, Geoffrey & James Buchanan. "The Normative Purpose of Economic 'Science': Rediscovery of an Eighteenth Century Method." International Review of Law & Economics 1 (1981):155-166.
Bork, Robert H. The Tempting of America: The Political Seduction of the Law. New York: Free Press, 1990.
Bickel, Alexander M. The Morality of Consent. New Haven: Yale Univ. Press, 1975.
Graglia, Lino A. "Constitutional Theory': The Attempted Justification for the Supreme Court's Liberal Political Program." Texas Law Review 65 (1987):789-798.
Graglia, Lino A. "How the Constitution Disappeared." Commentary, Feb. 1986, at 18-26.
Graglia, Lino A. "From Federal Union to National Monolith." Harvard Journal of Law & Public Policy 16 (1993):129-135.
Epstein, Richard. "The Mistakes of 1937." Geroge Mason Univ. Law Review 11 (1988):5-20.

VII. Comic relief
O'Rourke, P. J. Parliament of Whores. New York: Random House, 1991.

 

Copyright © 2008 by Avinash Dixit and Barry Nalebuff