Posted by Ilya Somin:
My Review of Steven Teles' The Rise of the Conservative Legal Movement:
http://volokh.com/archives/archive_2009_02_22-2009_02_28.shtml#1235503177
My review of Steven Teles's important book, [1]The Rise of the
Conservative Legal Movement, is now [2]available on SSRN. Here's the
abstract:
Steven Teles's The Rise of the Conservative Legal Movement is the
best and most thorough attempt to document the spectacular growth
of conservative efforts to influence the law since the 1970s. Both
scholars and legal activists have much to learn from his careful
account of this important episode in legal history.
Teles's most important finding is that effective
institutionalization of legal change requires not only a demand for
reform by voters or interest groups, but also a supply of trained
advocates, public interest law firms, and judges willing and able
to influence the law in the direction desired by an insurgent
political movement. As Teles effectively demonstrates, public
demand for legal change does not in itself generate the needed
supply of institutional resources. Through his analysis of the
growth of conservative and libertarian organizations such as the
Federalist Society, the Institute for Justice, the Center for
Individual Rights, and others, Teles chronicles the difficulties
faced by the legal right in their attempts to create the cadre of
lawyers and institutions they needed to challenge liberal dominance
over the law. The successes and failures of this effort are
instructive.
Teles's work has a few limitations. Perhaps the most important
shortcoming is his neglect of social conservatives' efforts at law
reform. Most of Teles's account focuses on libertarian
organizations that sought to use judicial review to limit the power
of government. Social conservatives, by contrast, sought to undo
judicial constraints on government power for the purpose of using
the state to advance social conservative ends, most notably,
banning abortion and pornography. Fuller consideration of the
social conservative experience is needed to test the
generalizability of Teles's conclusions.
Finally, Teles's account contains important lessons for
libertarians and conservatives who wish to strengthen judicial
limits on government intervention in the economy. To succeed,
pro-market public interest organizations must keep their distance
from business interests. In addition, Teles shows that pro-market
legal activists have not done enough to promote follow-up
litigation to exploit and enforce major precedential victories. On
this point, as on others, legal activists of the right can learn
from their left-of-center counterparts.
We previously discussed Teles's book in [3]this series of posts here
at the VC.
References
1.
http://www.amazon.com/Rise-Conservative-Legal-Movement-Princeton/dp/0691122083
2. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1341964
3. http://volokh.com/posts/chain_1204001365.shtml
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