Practicing Law in Light of Rothbard

0:00Thanks to Jeff Barr for shamelessly plugging my book and sparing me the unseemly task of promoting my own book up here, which, by the way, will be available for sale in July. You can sign up for a coupon code downstairs. Thank you again, Jeff Barr, for sparing me from doing that. Well, anyway, like my fellow panelists, I am a practicing lawyer, but I'm also an aspiring legal scholar. I've been thinking a lot lately about what someone could do to have a career as a legal scholar without compromising one's hardcore libertarianism. It seems to me that if you want to be a legal scholar in the sense of being employed as like a tenure-track faculty member at an accredited law school in the United States, you need to find an area of research that your colleagues will find at least somewhat acceptable.

0:49And I think this might require a certain amount of compromise in the sense that you might not start out ideally studying what you want to study and write about if it were entirely up to you. For example, I think the kind of libertarian legal theory, libertarian jurisprudence we were just talking about probably wouldn't fly with your colleagues at most law schools. I think probably, maybe if you were doing work on the level of Randy Barnett's structure of Liberty. Maybe you could get away with it, but chances are you can't, probably at least not earlier in your career. So if you want to do that, you either need to be tenured already or you need to have your main career be something else such as practicing law and then just do your libertarian theory on the side. And it could be that that is the best strategy for people who want to do that kind of work.

1:37But even though I think you need to stay away from that sort of thing, I don't think you need to compromise your principles if you do want to be a legal academic. Many libertarians lately are drawn to constitutional law thanks probably in large part to the work of people like Randy Barnett and the lawyers at the Institute for Justice, for example. This kind of constitutional scholarship allows you to argue that really the U.S. Constitution has been libertarian all along, we just need to go back and figure out what the framers of the Constitution really meant about various things and so forth. Then we can just come up with arguments so that we can take to courts and convince them that libertarianism is actually and the law of the land. It's understandable why that kind of legal scholarship is exciting to young libertarian scholars. It makes you dream of yourself having real-world results in the short term, when the court sees your amazing arguments and the veil is lifted from

2:30their eyes and the judges aren't statists anymore. And this approach isn't 100% without merit. There are a few places where the Constitution is relatively libertarian. The First and Second Amendment, for example, I say we might as well exploit those for all they're worth as long as they're there. And I think the scholars who research the history of the Second Amendment, for example, have done important beneficial work. The libertarian lawyers who've taken those ideas to court to protect gun rights have probably done some good. On the other hand though, overall the Constitution certainly isn't compatible with a libertarian society. It creates a powerful federal government. As Lysander Spooner pointed out, it gave us address the government we have now, so it's a small step from exploiting the Constitution to advance liberty to actually believing the Constitution is capable of creating a truly limited government or a government that somehow deserves to be obeyed.

3:25Some mistakes the scholars make, I think, are just naive. For example, right now they're making a big push to advance this idea that the privileges or immunities clause of the 14th Amendment really actually empowers federal courts to impose libertarianism across the and I don't think there's any chance whatsoever that they will ever succeed in the courts on those arguments. There's 140 years of precedent against them. I don't think the Supreme Court's going to rule in that way, so I'm not sure what their purpose is in pushing that line. I'm open to contrary views, but it strikes me as rather a waste of resources if your goal is really to advance liberty. But even worse in my view is the excessive emphasis on arguments such as the one that the commerce clause or parts of the constitution can be used going forward to limit federal power.

4:13Of course, all libertarians would like it if the courts started curtailing the federal government's powers. The trouble is that these arguments assume that the federal government might someday want to do this. They assume that theoretically we can have a limited government under the constitution if we just make the right arguments to the right people. This ignores the reality that the federal government has no incentive to limit itself. The presidents and senators who choose judges can and do deliberately screen out judicial candidates who would impose limits on their power. As Professor Hoppe has observed, this is why a limited government is theoretically impossible. No government that gets to decide for itself how much power it's going to have is going to decide that there are limits on its power, in the long run at least. and no great legal arguments will ever change this.

5:02So really the fundamental flaw in that kind of scholarship is that it ignores what Professor Hoppe has called the Austrian Class Theory. It views the state not necessarily as a group of criminals exploiting productive people, but possibly as a benevolent institution. So it seems to me to be really useful. Libertarian legal scholarship should take this reality into account. You don't need to be overtly anti-state or anarchist in your published academic work to do that. On the contrary, if you just describe and analyze what the state does through the law without making any naive or charitable judgments or assumptions about the nature of planners, politicians or judges, that may often be enough.

5:48For example, if you must study the Constitution, why not show that it's not libertarian? Why not illustrate how its authors deliberately designed it to allow government to grow? Why not study how politicians and judges have exploited this over the years to expand the state without any suggestion that things might have turned out otherwise? That might at least have the effect of delegitimizing the state, of exposing it for what it is, rather than engaging in wishful thinking about what you'd like it to be in a fantasy world where limited government is possible. That could be done with statutory law as well. as well. A great example for libertarian legal scholars to follow, I think, is a 1970 Virginia Law Review article by Richard Bonney and Charles Whitebread, who are two highly distinguished law professors who, as far as I know, aren't libertarians, that described in detail the origins of marijuana prohibition, showing how contrary, I guess, to popular belief at the time, it wasn't the product of any sort of public health crisis, but instead was just

6:46is the product of special interests inside and outside of government. Of course practically every piece of legislation has a story to be told about its unsavory origins and every law has a story to be told about how in practice it doesn't effectively achieve the ends for which it was supposedly passed. And of course Austrian people with a background in Austrian economics have a lot to say about why that's the case. So there's practically endless work for libertarians to do along those lines because unfortunately The Legal Realist approach to what judges do also seems very compatible with the libertarian view, and although it's often used for different purposes, it has some respect within the legal academy. The more we can show that judges are just people who act more or less arbitrarily to satisfy their own political preferences, the less legitimacy they and the government they're a part of are likely to have.

7:38That's also why libertarians should favor and advocate as much judicial transparency as possible, arguing for things like cameras in courtrooms to document judges' gaffes or bad behavior. And anything also the libertarian scholars can do, and no offense to my colleagues or myself, to demystify the legal profession in its present cartelized form would be helpful. Lawyers go to great lengths to make themselves seem like something special, like something more than ordinary providers of a service, and to increase their own prestige and of course to enrich themselves. So libertarians should work to tear that down too. Another area that's promising is analyzing alternatives to state provision of justice. Here too, libertarians have done, non-libertarians have done great work and libertarians can and should join in. For example, University of Chicago's Lisa Bernstein, who as far as I know is no libertarian, wrote a classic law review article on how All Jewish diamond merchants have their own system of justice that is completely independent of government courts and undoubtedly there are many other examples to be found both currently

8:42in practice all around us and historically. Peter Leeson's book on law among pirates is an example of this kind of work. It's the sort of thing that could just as easily be done by a legal scholar as by someone who's a professional economist. All this kind of work can be done in an implicitly anti-state way for a broader academic audience And for them, you're simply describing and analyzing, and who could object to that? But then, of course, the same information can be repackaged in a form that's suitable for a libertarian audience that will help others advance the libertarian cause. So I would say the Legal Academy is a viable career path for libertarians, and libertarians can probably succeed both in their careers and advancing the cause by doing good work that doesn't lose sight of the true nature of the state and of the positive law.

9:28Thank you very much.