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The Rise of the Conservative Legal Movement

The Rise of the Conservative Legal Movement: The Battle for Control of the Law

Steven M. Teles
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  • Book Info
    The Rise of the Conservative Legal Movement
    Book Description:

    Starting in the 1970s, conservatives learned that electoral victory did not easily convert into a reversal of important liberal accomplishments, especially in the law. As a result, conservatives' mobilizing efforts increasingly turned to law schools, professional networks, public interest groups, and the judiciary--areas traditionally controlled by liberals. Drawing from internal documents, as well as interviews with key conservative figures,The Rise of the Conservative Legal Movementexamines this sometimes fitful, and still only partially successful, conservative challenge to liberal domination of the law and American legal institutions.

    Unlike accounts that depict the conservatives as fiendishly skilled,The Rise of the Conservative Legal Movementreveals the formidable challenges that conservatives faced in competing with legal liberalism. Steven Teles explores how conservative mobilization was shaped by the legal profession, the legacy of the liberal movement, and the difficulties in matching strategic opportunities with effective organizational responses. He explains how foundations and groups promoting conservative ideas built a network designed to dislodge legal liberalism from American elite institutions. And he portrays the reality, not of a grand strategy masterfully pursued, but of individuals and political entrepreneurs learning from trial and error.

    Using previously unavailable materials from the Olin Foundation, Federalist Society, Center for Individual Rights, Institute for Justice, and Law and Economics Center,The Rise of the Conservative Legal Movementprovides an unprecedented look at the inner life of the conservative movement. Lawyers, historians, sociologists, political scientists, and activists seeking to learn from the conservative experience in the law will find it compelling reading.

    eISBN: 978-1-4008-2969-9
    Subjects: Law, Political Science

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-xiv)
  4. Introduction
    (pp. 1-5)

    Reflecting on Richard Nixon’s sweeping victory over George McGovern in the 1972 presidential election, the young White House aide Patrick Buchanan told the president that, even though liberalism was still dominant in institutions such as the media, “the Supreme Court is another story. The president has all but recaptured the institution from the Left; his four appointments have halted much of its social experimentation; and the next four years should see this second branch of government become an ally and defender of the values and principles in which the President and his constituency believe.”¹ Buchanan’s hopes, and those of the...

  5. 1 Political Competition, Legal Change, and the New American State
    (pp. 6-21)

    Political competition, as the epigraph of this chapter asserts, is mediated by the structure of the state. Challengers to a dominant regime do not operate in an empty playing field, but are forced to challenge inherited norms and institutions, or to adapt their insurgency to the structure of the regime they seek to dislodge. To understand why the conservative legal movement took the form it did, therefore, we need to begin with an account of the regime created by its opponents and the form of political competition that it produced.

    In the process of creating a vast new set of...

  6. 2 The Rise of the Liberal Legal Network
    (pp. 22-57)

    To understand the process of conservative organizational development examined in chapters 3 through 7, we must begin with what I will refer to as theliberal legal network(LLN), the collection of individuals and organizations in the legal profession, law schools, and public interest law groups that formed what Epp called the “support structure” for the rights revolution.¹ The LLN was at least as important, however, in theentrenchmentandextensionof the rights revolution as it was in their originalachievement.The LLN protected and extended liberal accomplishments in the law, even when the electoral coalition that had originally...

  7. 3 Conservative Public Interest Law I: Mistakes Made
    (pp. 58-89)

    Of all the cases of conservative legal mobilization examined in this book, none was more difficult or characterized by greater trial-and-error than public interest law.¹ While each step in the development of the Federalist Society and law and economics could build relatively smoothly on earlier ones, in public interest law conservatives had to overcome the legacy of their strategically inadequate initial response to legal liberalism. This chapter traces out the early—failed—conservative response to legal liberalism, the sources of its ineffectiveness, and the long process of strategic reevaluation its failings engendered.

    Faced with a deluge of lawsuits from Naderite...

  8. 4 Law and Economics I: Out of the Wilderness
    (pp. 90-134)

    Does the field of law and economics even belong in a book on the conservative legal movement? Many of the field’s most prestigious practitioners are quite liberal and motivated primarily by a desire to make law an empirical discipline, rather than an instrument of conservative or libertarian ideology. That said, there can be no doubt that 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.

    To understand the place of law and economics in the larger...

  9. 5 The Federalist Society: Counter-Networking
    (pp. 135-180)

    The Federalist Society is acknowledged, by friend and foe, to be an organization of extraordinary consequence. Liberals, fearing a “giant right-wing conspiracy” in the law with the Federalist Society at its head, have been alarmed by its role in judicial selection and have devoted significant time and resources to producing detailed studies of the organization.¹ On the right, conservatives have lavished praise on the Society for helping to “turn the tide” against liberal control of the legal profession, the law schools, and the courts.² Others are impressed simply by the federal judges and Supreme Court justices, top conservative legal professors,...

  10. 6 Law and Economics II: Institutionalization
    (pp. 181-219)

    For a good deal of the period covered in chapter 4, the question that loomed over law and economics was not whether it was right or wrong, but whether it was worthy of being considered seriously at all. Among a large part of the legal academic community, law and economics was thought to be the province of libertarian eccentrics, a nihilistic project to undermine the normative foundations of American law, or simply unfamiliar and vaguely threatening. This atmosphere of stigma meant that elite law schools did not feel the need to make room for the field or its adherents, and...

  11. 7 Conservative Public Interest Law II: Lessons Learned
    (pp. 220-264)

    The first generation of conservative public interest lawyers was hobbled by its failure to adapt to a transformed legal and political system, one in which the locus of political power had become firmly nationalized, and where agenda control, policy-specific knowledge, media savvy, appeals to idealism, and elite networks rivaled grassroots organization and business power. These early conservative lawyers also failed to learn from their liberal legal adversaries, instead replicating strategies that had been effective in other areas but were poorly adapted to the very different terrain of the law. As a consequence, the conservative public interest law movement failed in...

  12. Conclusion
    (pp. 265-282)

    These final pages move beyond the case of the law, identifying directions for future research on large-scale political change and the lessons of the conservative experience for political entrepreneurs and patrons. Drawing on the cases in the preceding chapters, I present an approach to understanding the rhythms and mechanisms of large-scale political change, one that puts agency, contingency, and policy and institutional variability at its core. Second, I identify what the example of the law can teach us about the transformation of the conservative movement over the past forty years. In doing so, I place special emphasis on conservatism’s shift...

  13. Appendix Interviews
    (pp. 283-286)
  14. Notes
    (pp. 287-330)
  15. Index
    (pp. 331-340)
  16. Back Matter
    (pp. 341-346)