Jesse Merriam (Loyola), Stephen Presser's Love Letter to the Law, in Five Parts, 33 Const. Comment. 71 (2018) (reviewing Stephen B. Presser (Northwestern), Law Professors: Three Centuries of Shaping American Law (West 2017)):
This book on law professors, Stephen Presser writes in the Preface, is a “love letter to the teaching of law” (p. v). But this is no mere “love letter.” The twenty-four chapters read more like a break-up letter, sounding with each successive chapter the ominous tone of a betrayed lover—more like Søren Kierkegaard’s regretful reflections on losing Regine Olsen to a more decisive suitor, and less like Kierkegaard’s earlier romantic confessions of adoration for Regine. Reading Law Professors, one gets the impression that, like Kierkegaard, Presser is writing his love letter with some bitterness, recalling the halcyon days of the legal academy when it was more insulated from the mass and welter of partisan politics.
Like all love letters contemplating the future of the relationship, Law Professors is essentially about change and loss, making it ideal for a course on social movements and legal change. These themes are all the more serious, given Presser’s prominent academic status, holding joint appointments at Northwestern University and having authored several casebooks—ranging from corporate law, to legal history, to constitutional law and theory—as well as two important, and controversial, books arguing for a reconsideration of various areas of constitutional law. Presser’s recent move to emeritus status gives this tome on law professors an even heavier tone, the ruminations of a legal giant on his thirty-plus years of experience in the legal academy.
While Law Professors is a ruminative book, it is also a thoroughly fun and playful one. Presser, in critiquing the prolixity and opacity of legal scholarship, quotes Ronald Rotunda’s observation that “[r]eading about law is not often fun” (p. 7 n.13), a proposition with which this reviewer generally agrees. But there are exceptions, times when reading law can be as enjoyable as reading literature. And Professor Presser has provided such an exception in this book. ...
The trivia keeps the book light, but the sense of change, and the resulting loss, creates an acute sense of betrayal, with three ominous themes reappearing throughout the work. One is the evolving conception of law over the last 200 years. ... Nearly everyone reading this book will already be aware of this transition away from legal naturalism and formalism and toward positivism and realism, but even to the informed reader, it is startling to see in Presser’s chronology how abruptly and comprehensively conceptions of law have changed within the legal academy.
A related theme intimated throughout the book is the increasing politicization of the legal academy, especially toward the left end of the ideological spectrum. Presser often alludes to how many of the 18th and 19th century scholars featured in the book did not make politics a central feature of their scholarship, in stark contrast with 20th and 21st century legal scholars. Indeed, the 21st century law professor is no longer expected simply to have the expertise to analyze and teach law, but to be especially well equipped to make law, too. ... [R]recent public gestures from the legal academy make Presser’s book particularly timely and provocative. Presser asks throughout the book: What gives law professors the authority to evaluate public policy? ...
A third theme, hinted at but not as expressly stated as the previous two, is the changing meaning of legal ideology over space and time. ... As Mark Pulliam, a prolific conservative legal writer, explained in a recent review of Law Professors, “Presser may be the most conservative law professor in America associated with a major law school.” Although I am not quite as comfortable ideologically ranking professors, as that begs the question of what it means to be more or less conservative (a question on which many reasonable minds can and will disagree, especially as applied to legal issues), it is undoubtedly true that Presser is one of the few remaining paleoconservatives left in legal academia. With Presser’s exit from the academy, this traditional version of conservatism has virtually no voice in legal scholarship, or in legal discourse altogether, giving a particularly poignant and literal meaning to the “paleo” prefix.
In the following pages, I will analyze how the book raises these three themes: the changing conceptions of law, the changing identities of law professors, and the changing meaning of legal ideology. I will do this by dividing the review into five parts, based on my placing the twenty-four chapters into five distinct categories. ...
Two caveats before we begin, one about the book and the other about the following review. One, in reading Law Professors, the attentive reader will undoubtedly find reason to quibble over Presser’s choices concerning the profiled scholars, an unavoidable product of his effort to capture the history of the American legal academy through a select set of figures. ...
Two, this review will focus to a significant extent on what Law Professors can teach us about the role of ideology in legal discourse, which may suggest to the reader of this review that Law Professors is a polemical tract. I want to be clear on this point: Law Professors most certainly is not partisan or tendentious, in any conceivable way. Rather, Law Professors is thoroughly kind and temperate in tone, and equitable and balanced in analysis.
In sum, although some readers will surely quibble over Presser’s inclusions and exclusions, and some will find insufficient or perhaps too much ideology in Law Professors, the book works remarkably well in capturing: (1) how law professors think about law, (2) how this thinking continues to evolve, perhaps at an accelerated rate over the last fifty years, and (3) how these recent changes are arousing concern that the rule of law is in serious trouble. Law Professors is best read not by fixating on the actual persons profiled, which will inevitably lead the reader to cavil over some of the choices, but by focusing on the big ideas, with a particular attention on how those ideas have migrated and morphed across space and time. ...
The concluding chapter of Law Professors leaves the reader with Presser’s not unexpectedly pessimistic ruminations on the status of the American legal academy and law in general: “Lady Justice may no longer be wearing her blindfold” (p. 460), which for Presser constitutes a serious threat to the rule of law. The critical reader might resist Presser’s diagnosis here, however, on the ground that Lady Justice was never blindfolded—and perhaps for good reason: As President Obama famously described the arbitration of justice, it is messy and gritty, requiring an eye constantly on the scales to ensure that the law lives up to its highest purposes.
Most readers of Law Professors likely will not conclude the book in absolute agreement with Presser’s diagnosis that the rule of law in America is actually on the verge of being destroyed by law professors and their judicial accomplices. Partisanship has, to be sure, invaded the legal academy and judiciary in a way that was previously unheard of, and legal scholarship and judicial craftsmanship have certainly changed over time. But overall, the rule of law, that fuzzy contestable concept that at its core simply requires a sovereign to follow legal texts and comply with legal authorities, is not categorically different now than it was one or even two hundred years ago. As much as we might complain that our current president, just like his predecessor, neglects legal commands, both of these supposed authoritarians have followed judicial decisions and legal processes, no matter how much they have griped about it.
So is Presser simply a Cassandra, needlessly worrying about a legal system that is as healthy as ever? Not at all. Something has indeed been lost, something precious. And it is increasingly hard to imagine that thing being recovered. In reading Law Professors, particularly the conclusion, one may hear traces of one of Justice Scalia’s great quotes (in dissent of course): “The Court must be living in another world,” Scalia wrote. “Day by day, case by case, it is busy designing a Constitution for a country I do not recognize.” What is unrecognizable to a traditionalist like Presser is not so much the machinery of the rule of law or the missing blindfold on Lady Justice, but the identity of the nation itself.
That is what has been lost: that shared sense of meaning and understanding, anchored in tradition and belonging. Professor Presser’s powerful account of the legal academy demonstrates how, over the last 225 years, that identity has been slipping away. In 21st century America, there is certainly the rule of law, and it is perhaps as strong and healthy ever, but it is operating in a markedly different way, running a system where diversity, change, and individualism are more integral to the legal order than commonality, stability, and community.
The book thus leaves the reader with the indelible impression that what really matters in the 21st century is not so much that we’re all realists or all originalists. What matters is that we’re all multicultural progressives now. For a traditionalist, this does not necessarily mean that American law cannot survive, or even that we cannot practice or teach law within this system. Perhaps we can even learn to love it. But it also may be the case that we can really only fall in love once, for no person or thing can replace, as Kierkegaard wrote, “my heart’s sovereign mistress (‘Regina’) stored in the deepest recesses of my heart, in my most brimmingly vital thoughts, there where it is equally far to heaven as to hell—unknown divinity.”