Book Review

What Consequences Do Ideas Have?

Prof. Mark Tushnet
Vol. 87, Issue 2
Book Review appears in Issue 2
87 Texas L. Rev. 447 (2008)

Mark Tushnet describes Steven Teles's The Rise of the Conservative Legal Movement as "a case study of ideological challenge."  Teles addresses the attempt by conservative legal thinkers in the late-twentieth century to transform the institutions of academia and government that had been largely dominated by liberal thinkers during the mid-twentieth century.  Teles examines the development of conservative public interest law firms, the growth of the Federalist Society, and the embedding of law and economics within the legal academy.  Tushnet suggests that Teles's approach offers new insights into the institutions that affect the outcomes of ideological contests.

The book first addresses the rise of law and economics in the legal academy as an aspect of the conservative legal movement.  Teles notes, "Many conservatives, especially foundation patrons, saw in law and economics a powerful critique of state intervention in the economy, and a device for gaining a foothold in the world of elite law schools."  Tushnet suggests that the law and economics movement was more effective in the second goal, in that support for the movement from conservative foundations such as the Olin Foundation did help conservative scholars attain academic positions, particularly at Harvard University.  The influence of the movement as a critique of state economic intervention, however, waned as the level of sophistication of economic analysis of the law increased. "The better legal economists got as economists," writes Tushnet, "the less clear the conservative spin of law and economics became."  Thus, while the movement may have helped conservative scholars attain academic appointments, the movement itself has increasingly veered away from conservative ideology. 

Tushnet characterizes Teles's chapters on conservative public interest law firms as "the best work on the subject I know of."  Teles describes the development of these law firms in two stages.  In the first stage conservatives emulated the liberal public interest firms already in existence, which was generally unsuccessful because the conservative law firms were seen as representing the interests of the business community rather than the "public interest" more generally.  In the second and more successful stage, the conservative public interest law firms turned from businesses to libertarian-leaning individuals for support.  While the Institute for Justice, the most prominent of the conservative litigation groups, has won several lawsuits representing small businesspeople facing arbitrary licensing requirements, the movement has had little success in rolling back the post-New Deal regulatory apparatus that was its original target.  Tushnet suggests that the most significant litigation wins for the conservative movement have come from client-driven work of elite law firms—for example, in establishing constitutional limits on punitive damages, rather than from the ideology-driven work of the public interest law firms. 

The Federalist Society has been the most successful institution created by the conservative legal movement.  Teles focuses on its role as a network for moral support and job placement for conservative law students and lawyers.  Tushnet compares the role of the Federalist Society to that of Felix Frankfurter and his Happy Hot Dogs, who moved from law schools into the newly created administrative agencies of the New Deal.  Tushnet notes that the Federalist Society has ultimately been less influential than were the New Deal administrative lawyers, in that the New Deal lawyers created the administrative agencies in which many Federalist Society members now work.  While the Federalist Society has been successful in helping conservative lawyers attain positions of influence, those lawyers have not fundamentally changed the institutions of government.