WEBVTT NOTE Practicing Law in Light of Rothbard 1 00:00:00.000 --> 00:00:08.500 Thanks to Jeff Barr for shamelessly plugging my book and sparing me the unseemly task of promoting my own book up here, 2 00:00:08.500 --> 00:00:11.300 which, by the way, will be available for sale in July. 3 00:00:11.300 --> 00:00:14.300 You can sign up for a coupon code downstairs. 4 00:00:14.300 --> 00:00:17.500 Thank you again, Jeff Barr, for sparing me from doing that. 5 00:00:17.500 --> 00:00:23.500 Well, anyway, like my fellow panelists, I am a practicing lawyer, but I'm also an aspiring legal scholar. 6 00:00:23.500 --> 00:00:29.980 I've been thinking a lot lately about what someone could do to have a career as a legal 7 00:00:29.980 --> 00:00:35.460 scholar without compromising one's hardcore libertarianism. 8 00:00:35.460 --> 00:00:40.060 It seems to me that if you want to be a legal scholar in the sense of being employed as 9 00:00:40.060 --> 00:00:44.720 like a tenure-track faculty member at an accredited law school in the United States, you need 10 00:00:44.720 --> 00:00:49.980 to find an area of research that your colleagues will find at least somewhat acceptable. 11 00:00:49.980 --> 00:00:54.120 And I think this might require a certain amount of compromise in the sense that you might 12 00:00:54.120 --> 00:01:00.240 not start out ideally studying what you want to study and write about if it were entirely 13 00:01:00.240 --> 00:01:01.580 up to you. 14 00:01:01.580 --> 00:01:06.220 For example, I think the kind of libertarian legal theory, libertarian jurisprudence we 15 00:01:06.220 --> 00:01:11.380 were just talking about probably wouldn't fly with your colleagues at most law schools. 16 00:01:11.380 --> 00:01:16.500 I think probably, maybe if you were doing work on the level of Randy Barnett's structure 17 00:01:16.500 --> 00:01:17.500 of Liberty. 18 00:01:17.500 --> 00:01:20.780 Maybe you could get away with it, but chances are you can't, probably at least not earlier 19 00:01:20.780 --> 00:01:21.940 in your career. 20 00:01:21.940 --> 00:01:27.460 So if you want to do that, you either need to be tenured already or you need to have 21 00:01:27.460 --> 00:01:31.480 your main career be something else such as practicing law and then just do your libertarian 22 00:01:31.480 --> 00:01:32.480 theory on the side. 23 00:01:32.480 --> 00:01:37.180 And it could be that that is the best strategy for people who want to do that kind of work. 24 00:01:37.180 --> 00:01:40.740 But even though I think you need to stay away from that sort of thing, I don't think you 25 00:01:40.740 --> 00:01:45.620 need to compromise your principles if you do want to be a legal academic. 26 00:01:45.620 --> 00:01:50.700 Many libertarians lately are drawn to constitutional law thanks probably in large part to the work 27 00:01:50.700 --> 00:01:56.180 of people like Randy Barnett and the lawyers at the Institute for Justice, for example. 28 00:01:56.180 --> 00:02:00.900 This kind of constitutional scholarship allows you to argue that really the U.S. Constitution 29 00:02:00.900 --> 00:02:05.040 has been libertarian all along, we just need to go back and figure out what the framers 30 00:02:05.040 --> 00:02:09.100 of the Constitution really meant about various things and so forth. Then we can just come 31 00:02:09.100 --> 00:02:13.580 up with arguments so that we can take to courts and convince them that libertarianism is actually 32 00:02:13.580 --> 00:02:20.260 and the law of the land. It's understandable why that kind of legal scholarship is exciting 33 00:02:20.260 --> 00:02:25.180 to young libertarian scholars. It makes you dream of yourself having real-world results 34 00:02:25.180 --> 00:02:30.140 in the short term, when the court sees your amazing arguments and the veil is lifted from 35 00:02:30.140 --> 00:02:37.300 their eyes and the judges aren't statists anymore. And this approach isn't 100% without 36 00:02:37.300 --> 00:02:42.860 merit. There are a few places where the Constitution is relatively libertarian. The First and Second 37 00:02:42.860 --> 00:02:46.740 Amendment, for example, I say we might as well exploit those for all they're worth as 38 00:02:46.740 --> 00:02:51.820 long as they're there. And I think the scholars who research the history of the Second Amendment, 39 00:02:51.820 --> 00:02:56.660 for example, have done important beneficial work. The libertarian lawyers who've taken 40 00:02:56.660 --> 00:03:01.140 those ideas to court to protect gun rights have probably done some good. On the other 41 00:03:01.140 --> 00:03:06.460 hand though, overall the Constitution certainly isn't compatible with a libertarian society. 42 00:03:06.460 --> 00:03:10.940 It creates a powerful federal government. As Lysander Spooner pointed out, it gave us 43 00:03:10.940 --> 00:03:15.320 address the government we have now, so it's a small step from exploiting the Constitution 44 00:03:15.320 --> 00:03:20.560 to advance liberty to actually believing the Constitution is capable of creating a truly 45 00:03:20.560 --> 00:03:25.960 limited government or a government that somehow deserves to be obeyed. 46 00:03:25.960 --> 00:03:29.740 Some mistakes the scholars make, I think, are just naive. For example, right now they're 47 00:03:29.740 --> 00:03:34.780 making a big push to advance this idea that the privileges or immunities clause of the 48 00:03:34.780 --> 00:03:39.940 14th Amendment really actually empowers federal courts to impose libertarianism across the 49 00:03:39.940 --> 00:03:46.700 and I don't think there's any chance whatsoever that they will ever succeed in the courts 50 00:03:46.700 --> 00:03:51.060 on those arguments. There's 140 years of precedent against them. I don't think the Supreme Court's 51 00:03:51.060 --> 00:03:55.340 going to rule in that way, so I'm not sure what their purpose is in pushing that line. 52 00:03:55.340 --> 00:04:00.500 I'm open to contrary views, but it strikes me as rather a waste of resources if your 53 00:04:00.500 --> 00:04:06.420 goal is really to advance liberty. But even worse in my view is the excessive emphasis 54 00:04:06.420 --> 00:04:11.340 on arguments such as the one that the commerce clause or parts of the constitution can be 55 00:04:11.340 --> 00:04:13.860 used going forward to limit federal power. 56 00:04:13.860 --> 00:04:18.220 Of course, all libertarians would like it if the courts started curtailing the federal 57 00:04:18.220 --> 00:04:19.220 government's powers. 58 00:04:19.220 --> 00:04:23.020 The trouble is that these arguments assume that the federal government might someday 59 00:04:23.020 --> 00:04:24.780 want to do this. 60 00:04:24.780 --> 00:04:28.540 They assume that theoretically we can have a limited government under the constitution 61 00:04:28.540 --> 00:04:32.140 if we just make the right arguments to the right people. 62 00:04:32.140 --> 00:04:36.780 This ignores the reality that the federal government has no incentive to limit itself. 63 00:04:36.780 --> 00:04:42.220 The presidents and senators who choose judges can and do deliberately screen out judicial 64 00:04:42.220 --> 00:04:45.220 candidates who would impose limits on their power. 65 00:04:45.220 --> 00:04:50.820 As Professor Hoppe has observed, this is why a limited government is theoretically impossible. 66 00:04:50.820 --> 00:04:54.100 No government that gets to decide for itself how much power it's going to have is going 67 00:04:54.100 --> 00:04:58.220 to decide that there are limits on its power, in the long run at least. 68 00:04:58.220 --> 00:05:02.220 and no great legal arguments will ever change this. 69 00:05:02.220 --> 00:05:06.220 So really the fundamental flaw in that kind of scholarship 70 00:05:06.220 --> 00:05:10.220 is that it ignores what Professor Hoppe has called the Austrian Class Theory. 71 00:05:10.220 --> 00:05:14.220 It views the state not necessarily as a group of criminals 72 00:05:14.220 --> 00:05:18.220 exploiting productive people, but possibly as a benevolent institution. 73 00:05:18.220 --> 00:05:22.220 So it seems to me to be really useful. 74 00:05:22.220 --> 00:05:26.220 Libertarian legal scholarship should take this reality into account. 75 00:05:26.220 --> 00:05:33.220 You don't need to be overtly anti-state or anarchist in your published academic work to do that. 76 00:05:33.220 --> 00:05:39.220 On the contrary, if you just describe and analyze what the state does through the law 77 00:05:39.220 --> 00:05:46.220 without making any naive or charitable judgments or assumptions about the nature of planners, politicians or judges, 78 00:05:46.220 --> 00:05:48.220 that may often be enough. 79 00:05:48.220 --> 00:05:53.220 For example, if you must study the Constitution, why not show that it's not libertarian? 80 00:05:53.220 --> 00:05:58.220 Why not illustrate how its authors deliberately designed it to allow government to grow? 81 00:05:58.220 --> 00:06:04.220 Why not study how politicians and judges have exploited this over the years to expand the state 82 00:06:04.220 --> 00:06:07.220 without any suggestion that things might have turned out otherwise? 83 00:06:07.220 --> 00:06:12.220 That might at least have the effect of delegitimizing the state, of exposing it for what it is, 84 00:06:12.220 --> 00:06:17.220 rather than engaging in wishful thinking about what you'd like it to be in a fantasy world 85 00:06:17.220 --> 00:06:19.220 where limited government is possible. 86 00:06:19.220 --> 00:06:21.220 That could be done with statutory law as well. 87 00:06:21.220 --> 00:06:27.020 as well. A great example for libertarian legal scholars to follow, I think, is a 1970 Virginia 88 00:06:27.020 --> 00:06:31.700 Law Review article by Richard Bonney and Charles Whitebread, who are two highly distinguished 89 00:06:31.700 --> 00:06:37.380 law professors who, as far as I know, aren't libertarians, that described in detail the 90 00:06:37.380 --> 00:06:42.420 origins of marijuana prohibition, showing how contrary, I guess, to popular belief at 91 00:06:42.420 --> 00:06:46.820 the time, it wasn't the product of any sort of public health crisis, but instead was just 92 00:06:46.820 --> 00:06:51.580 is the product of special interests inside and outside of government. 93 00:06:51.580 --> 00:06:56.340 Of course practically every piece of legislation has a story to be told about its unsavory 94 00:06:56.340 --> 00:07:01.940 origins and every law has a story to be told about how in practice it doesn't effectively 95 00:07:01.940 --> 00:07:04.900 achieve the ends for which it was supposedly passed. 96 00:07:04.900 --> 00:07:09.860 And of course Austrian people with a background in Austrian economics have a lot to say about 97 00:07:09.860 --> 00:07:10.860 why that's the case. 98 00:07:10.860 --> 00:07:15.660 So there's practically endless work for libertarians to do along those lines because unfortunately 99 00:07:15.660 --> 00:07:28.660 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. 100 00:07:28.660 --> 00:07:38.660 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. 101 00:07:38.660 --> 00:07:48.660 That'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. 102 00:07:48.660 --> 00:07:58.660 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. 103 00:07:58.660 --> 00:08:05.660 Lawyers go to great lengths to make themselves seem like something special, like something more than ordinary providers of a service, 104 00:08:05.660 --> 00:08:10.460 and to increase their own prestige and of course to enrich themselves. So libertarians 105 00:08:10.460 --> 00:08:15.980 should work to tear that down too. Another area that's promising is analyzing alternatives 106 00:08:15.980 --> 00:08:22.180 to state provision of justice. Here too, libertarians have done, non-libertarians have done great 107 00:08:22.180 --> 00:08:28.580 work and libertarians can and should join in. For example, University of Chicago's Lisa 108 00:08:28.580 --> 00:08:33.340 Bernstein, who as far as I know is no libertarian, wrote a classic law review article on how 109 00:08:33.340 --> 00:08:37.660 All Jewish diamond merchants have their own system of justice that is completely independent 110 00:08:37.660 --> 00:08:42.340 of government courts and undoubtedly there are many other examples to be found both currently 111 00:08:42.340 --> 00:08:47.380 in practice all around us and historically. Peter Leeson's book on law among pirates 112 00:08:47.380 --> 00:08:50.700 is an example of this kind of work. It's the sort of thing that could just as easily be 113 00:08:50.700 --> 00:08:57.100 done by a legal scholar as by someone who's a professional economist. 114 00:08:57.100 --> 00:09:01.660 All this kind of work can be done in an implicitly anti-state way for a broader academic audience 115 00:09:01.660 --> 00:09:05.660 And for them, you're simply describing and analyzing, and who could object to that? 116 00:09:05.660 --> 00:09:10.660 But then, of course, the same information can be repackaged in a form that's suitable for a libertarian audience 117 00:09:10.660 --> 00:09:13.660 that will help others advance the libertarian cause. 118 00:09:13.660 --> 00:09:18.660 So I would say the Legal Academy is a viable career path for libertarians, 119 00:09:18.660 --> 00:09:22.660 and libertarians can probably succeed both in their careers and advancing the cause 120 00:09:22.660 --> 00:09:28.660 by doing good work that doesn't lose sight of the true nature of the state and of the positive law. 121 00:09:28.660 --> 00:09:30.660 Thank you very much.