Zywicki: How Law School Got Woke

National Review Special Section: Defending the Rule of Law (Sept. 2024):

Todd Zywicki (George Mason), How Law School Got Woke:

Students learn to seek outcomes, not justice.

Law schools are the training ground of the next generation of lawyers, judges, and public officials, and for many decades, beginning with the emergence of critical legal studies at Harvard in the 1980s, they have promoted ideas that are fundamentally hostile to the rule of law. For most of that time, this radical thinking remained on the periphery. In recent years, however, “woke law” has taken over the schools. The George Floyd murder and its aftermath, in particular, accelerated the trend. Understanding this anti-rule-of-law philosophy helps to explain the alarming intensification of lawfare tactics against Donald Trump and his supporters today.

The nostrums of woke law reject the rule of law precisely because it attempts to apply fair, neutral principles to everyone (even if it does so imperfectly in practice). The traditional focus on fair processes and procedures should now be subordinated, the thinking goes, to equity in results. Under this worldview, the gauge of an institution’s fairness or justice is not rigorous adherence to formal rules but certain outcomes, such as elimination of racial disparities. Equal formal treatment of all individuals through consistent application of principles of procedural justice violates the concept of equity. The ongoing attack on the criminal-justice system as “systemically racist” and illegitimate illustrates this mind-set. The system is no longer judged according to the traditional notion of a fair trial, which relies on unbiased jurors’ applying the law neutrally to the facts of the case. What matters instead is that the system deliver specific results thought to correct historical injustices. The ideal of impartiality is thus replaced with transparent activism. ...

What, if anything, can be done to reform law schools and pull them back from this abyss? Several practical steps might help rescue the rule of law.

First, law schools should ensure that their students graduate with a proper understanding of the centrality of the rule of law to the Western tradition of freedom and capitalism. ...

Second, legal-education accrediting bodies such as the American Bar Association (ABA) and the Association of American Law Schools should promote the study of the rule of law as part of their standards. These standards today are based, to an obsessive degree, on diversity, equity, and inclusion concepts. ...

Third, authority figures in the legal profession can use their influence to pressure law schools from the outside if they are unwilling to reform on their own. ...

• Charles Cooke (National Review), Long Live the Legislature
  Article I comes first for good reason.
• Dan McLaughlin (National Review), The Rule of Law vs. the Rule of Lawyers
  Three principles guide the first.
• Ed Whelan (Ethics & Public Policy Center), Trump and the Conservative Legal Movement
  The peril and promise of another term.
• Jonathan Adler (Case Western), It’s Too Easy to File Lawsuits for Others
  A critique of standing doctrine.
• Andrew McCarthy (National Review), The Grave Dangers of Lawfare
  America must reverse the alarming drift toward political prosecutions.
• Maureen Ohlhausen (Former FTC Commissioner), The FTC’s Usurpatory Noncompete Ban
  Where is its authority to regulate everyone’s employment contract?
• John Bolton (Former National Security Advisor), Against the International Criminal Court
  Lawless in The Hague.
• Mario Loyola (Florida International) & Richard Epstein (NYU), The End of Chevron Deference
  FDR’s ‘scorpion’ justices have heirs on the current Supreme Court.
• James Ho (U.S. Court of Appeals for the 5th Circuit), The Attack on the Courts
  A campaign of intimidation.

Editor's Note:  If you would like to receive a daily email with links to legal education posts on TaxProf Blog, email me here.