book forum: the rise of the conservative legal movement by steven teles

Over the next week or so, we’ll have a back and forth with Steve Teles, whose 2008 book chronicles the emergence of the conservative legal establishment. The book has been hailed by many as an important account of late 20th century American politics. In a nutshell: Sometime around the 1970s, conservatives realized that their electoral victories could be undermined by the courts. The reason is that courts are highly dependent on legal theory and precedent. Without a serious alternative to liberal jurisprudence, it was often impossible for conservative policies to survive judicial review. The solution? Create an intellectual alternative to liberalism so that judges could rely on rigorous thinking when overturning liberal policies or approving conservative ones. This intellectual alternative was hatched in a network of scholars and organizations in the 70s, 80s and 90s and allowed a generation of judges to support new laws.

We’re lucky to have Steve with us for this forum. I’ve decided to post my thoughts and Steve will later post his own responses. I think this is a neat opportunity to hash out a sociological approach to the conservative legal movement (CLM). So let me start with some questions and comments about the facts of the case:

1. RoCLM focuses a lot on the academic specialty of law and economics, especially in elite law schools. This makes sense because elite law schools are often the incubators for innovations in the legal world. How popular, exactly, is L&E? Do elite law schools all have a few L&E practitioners? Or is it limited to Chicago and its satellites? In other words, is L&E a few gurus, or is it a movement that has deeply affected the way legal scholarship is done by the average law prof?

2. On a related point, how do we know that L&E helped CLM law firms actually win cases? For example, how many cases actually cite L&E scholarship? Are the citations limited to a few hot-button cases, or is L&E used in a wide variety of cases? In your answer, exclude opinions writen by Posner.

3. Where are the religious conservatives? The book has three main characters – L&E profs, public interest firms like Institute for Justice, and the big tent Federalist Society. But the historians and social scientists tell us that conservatives rode to power on the votes of social conservatives. These folks seem to be absent in the book – or is elite law really run by economists and libertarians wannabes?