the rise of the conservative legal movement, again

Crooked Timber has a seminar on Steve Teles’ Rise of the Conservative Legal Movement. We covered it last year: read the back and forth between Teles and I here. Here’s my contribution to the Crooked Timber seminar:

Steven Teles’ The Rise of the Conservative Legal Movement (RCLM) is an important book. It is one of the few studies to thoroughly address the institutionalization of conservative politics. It’s also a well motivated account. Using ideas from contemporary sociology, Teles frames the conservative legal movements as an example of resource mobilization. Winning elections isn’t enough to implement conservative policy. One must create conservative networks and organizations that can be used to fight and win court battles.

In this response to RCLM, I’d like to argue that conservative legal movement is a failed movement. We have come to view the period from the 1970s to the 2006 Congressional election as an unqualified victory for the American right. Republicans put three of their own in the White House and gained control of the House of Representatives. The 9/11 era allowed a conservative White House to restructure the Federal government and expand its powers.

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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?

previous book forums

We’ll start with Krippner’s Capitalizing on Crisis on May 15. But for you anxious bookworms, there have been a number of provocative book forums already:

• John Levi Martin – Social Structures
• Sudhir Venkatesh – Off the Books
• Steven Teles – The Rise of the Conservative Legal Movement
• Tim Harford – The Logic of Life (cross posted at Marginal Revolution)
• Donald MacKenzie – An Engine, Not a Camera

And don’t forget all the book spotlights. Check it out!

markets on trial

I attended a really interesting conference this weekend that brought together some leading economic sociologists and organizational scholars to talk about the financial crisis.  Research in the Sociology of Organizations will publish the conference’s papers. You can download early drafts of the papers here.

The authors were asked to think about what sociological theory has to say about the causes of the financial crisis and to speculate about potential solutions. The conference was mainly focused on the former question, although towards the end discussion drifted to policy.  The papers were very diverse, but one idea came up in several papers. The idea was that the crisis was a kind of normal accident that was made possible by the organizational structure of the financial system. As Charles Perrow theorized, accidents can be thought of as the product of organizational systems that are highly complex and tightly coupled. Decision-makers have a hard time figuring out how the system works as a whole due to its complexity, but when one part of the system breaks down, for whatever reason, the entire system is vulnerable to collapse due to the interdependence of the different parts. The idea comes out most strongly in the papers by Schneiberg and Bartley and Palmer and Maher.

The conference created a lot of lively discussion about the need to make economic sociology more relevant to policy.  Although no single policy solution emerged, it was one of the best conversations I’ve ever been a part of in which economic sociologists strive to make their research relevant and not just theoretically interesting. So it was a good step forward. Still, I wondered what policy experts and regulators would say to the commentary. As Jerry Davis remarked in his concluding comments, “markets on trial” felt a bit like a kangaroo court. No financial economists or fed officials attended. Of course, I don’t think that the ideas need to be validated by an economist to make them good, but if economic sociology is ever going to make a move into the realm of regulation and policymaking, that interaction needs to take place.

The other part of this equation is the political mobilization it would take to make the policy solutions of economic sociologists politically viable.  One only needs to look to law and economics to see an example of how academics mobilized their ideas as part of a political coalition to institutionalize a particular set of policy solutions. As we talked about in a series of posts last year, Steven Teles’s fascinating book about the rise of the conservative legal movement illustrates how this coalition formed and influenced regulatory processes. Making major transformations like some of the scholars propose requires having access to mobilizing resources and a political will that economic sociologists haven’t had in the past.  The workshop was a great opportunity to get something like that started.

 

a political sociology of the right

My impression of political sociology has been that it’s much better at analyzing the interconnections and ideologies of the left than it is in its treatment of the right.  This is not surprising given that most sociologists lean strongly to the left and have more familiarity with these actors and their ideologies.  The problem with this though is that sometime our depictions of conservative/right-leaning political actors is not very realistic. They become monolithic figures driven by maniacal greed. This depiction, of course, ignores the subtle but important divides that exist among political conservatives and, in my mind, does not accurately convey their connections to the corporate world, which is often conceived as being wholly captured by the right.

This view of the right among political sociologists is beginning to change.  Sociologists are just as left-leaning as they’ve always been but a new strand of research has emerged that engages with the political right in a much more nuanced way.  This reexamination may come now, in part, because political sociologists are seeking new research niches and, lo and behold, they’ve discovered that political sociologists haven’t had very interesting things to say about conservatives.  But the discovery of the right may also be related to the gradual deterioration of the popularity of neo-Marxist theories and their replacement with cultural or political process theories.  Granted, some of the neo-Marxist/Millsian emphasis on power elites is still there, but it has been recombined with other perspectives to produce a more interesting body of research that uses a more normal science approach.

Three books that we’ve talked about on orgtheory recently exemplify this new political sociology of the right: Michael Lindsay’s Faith in the Halls of Power, Steven Teles’s The Rise of the Conservative Legal Movement, and Tina Fetner’s How the Religious Right Shaped Lesbian and Gay Activism.  Each book deals with a different aspect of the right, although they share in common an interest in how social movement processes have changed political conservatism in the U.S.  This interest in movement processes is important because I think it says something about how we’re reconceptualizing the right in political sociology. Rather than seeing the right as a hegemonic worldview perpetuated conspiratorially through elite networks and government institutions, the right here is seen as often lacking power and as dependent on resource mobilization as the left.  Further, you can’t understand the surge of the conservative ideology without examining their embeddedness in religious and other local, grass roots organizations.  This is not to say that the right doesn’t have its powerful, wealthy elites, but those powerful interests are probably not the source of the sudden shift witnessed in the Republican party over the last 30 years.

cool social science books of 2008?

Here are the books we’ve covered this year:

• Neil Gross: Richard Rorty, The Making of an American Philosopher
• Tina Fetner: How the Religious Right Shaped lesbian and gay activism
• Steve Teles: Rise of the Conservative Legal Movement
• Michael Lindsay: Faith in the Halls of Power
• Isaac Martin: The Permanent Tax Revolt
• Fred Wherry: Global Markets and Local Crafts
• Matthew Frederick: 101 Things I Learned in Architecture School
• Richard Scott: Institutions and Organizations (new edition)
• Christopher Alexander: Notes on the Synthesis of Form
• Tim Harford: The Logic of Life
• Randall Collins: Violence: A Micro-sociological Theory

Post your own nominations for great recent social science writing – or not so recent! Authors, don’t hesitate to plug your own stuff.

teles book forum #2: conservatives in the sociological lens

This is round two of the forum on The Rise of the Conservative Legal Movement. Click here for Steve’s remarks from last week.

My topic this week: how does the fact the RoCLM depend on the fact that Teles writes about conservatives? It’s apparent that Teles uses the intellectual framework associated with contemporary movement scholarship, even though most of that framework was developed to explain events such as the civil rights movement. It’s a dual story about the framing of legal scholarship and networks/institutions designed to promote that new framing. Here are questions for Steve:

1. Mitchell Stevens’ work on home schoolers shows that the social organization of home school groups depends on the ideology of the group. Liberals are less likely to employ hierarchical models when setting up their parent networks and educational practices. In contrast, conservatives tries to strongly mimic traditional schools and their parent groups often have a “top down” flavor. Can this lesson be carried over to the CLM?
2. Impact on liberals and push back: As we’ll see later this month, Tina Fetner shows that liberals were strongly affected by conservative politics. How did liberal legal academia respond to the CLM? Did it revitalize them? Did they launch new efforts? Is there a new liberal legal theory being pushed, one better than critical race theory?
3. How does conservative ideology dictate which issues get the most effort? In a later chapter, you mention that a severe limitation of conservative legal efforts is that most of the effort goes into hot button issues with limited impact, such as campus speech codes. Liberal seem more willing to fight on bread and butter issues. Can you say more about that?
4. How does this affect the debate over conservatives in academia? I’d argue that CLM is one of the few intellectual success stories in academia for conservatives, in addition to market economics and, perhaps, Straussian/conservative political theory. Otherwise, a-political theories or theories associated with liberal or left politics are most popular in the rest of the humanities and social sciences. Two of these movements had substantial money backing them. Is it money? Or are there other factors that link these two movement successes? What can their counterparts in philosophy or literature take from RoCLM?

Add your own questions in the comments.

teles book forum response #1

On Monday, I asked a few questions about The Rise of the Conservative Legal Movement. Teles responds here. Next week, I’ll add some more questions. Feel free to ask more in the comments, or write your own and link here:

First of all, I want to thank Fabio for hosting this forum on my book. Although I’m a political scientist, my book draws on a lot of sociological theory, and my hope was that it would be of interest to sociologists interested in social movements, political organizations, and the sociology of knowledge. In fact, I think it has at least as much to offer sociologists as folks in my home discipline.

Ok, so let’s get right into it. Fabio asks a number of questions about law and economics. One thing that is important to note, and that I try to emphasize in the book, is that L&E is peculiar in that, especially in its early days, it was both an ideology and a methodology. That is, L&E practitioners had a critique of the generally pro-interventionist slant of most existing legal scholarship—especially in private law areas and anti-trust—but they also were attacking the way that legal scholarship was done, focusing mainly on interpreting existing case law. So if we want to ask if L&E was successful, we need to think of it as having these two elements simultaneously.