LAW PROFESSORS: THREE CENTURIES OF SHAPING AMERICAN LAW. By Stephen B. Presser. (1) St. Paul: West Publishing, 2017. Pp. xii + 486. $48.00 (cloth).
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 Soren 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. (3) 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. (4) These themes are all the more serious, given Presser's prominent academic status, holding joint appointments at Northwestern University (5) 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. (6) 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. Indeed, even knowledgeable readers will find in Law Professors trivia certain to titillate and amuse. Sure, you already knew about Posner's contributions to the law and economics movement, but did you know about Fang, his Norwegian elkhound (p. 308)? Or that James Wilson was the nation's third law professor (p. 32 n.77)? Presser even divulges some information about himself, such as that he is a Dr. Seuss fan, something that might surprise some followers of Presser's academic writing over the years (p. 137 n.445). Nearly every one of the 473 highly digestible pages, including the 1,384 unbroken sequential footnotes, bubbles with factoids that historically oriented, and indeed all intellectually curious, readers will enjoy.
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. At various points in the book, Presser emphasizes how law professors have moved away from a natural theory of law (wherein legal norms inhere in the divine order of the world, thus creating a necessary relationship between law and morality) and toward a more positivistic understanding (wherein legal norms are ultimately traceable to positive political action, thereby severing the necessary connection between law and morality). Presser, through his careful chronicling of the American legal academy, documents how Oliver Wendell Holmes represented a dramatic departure from the natural law tradition, and indeed the entire American legal tradition. Strikingly, all of the pre-Holmes professors featured in the book make natural law a central feature of their understanding of law, and almost all of the post-Holmes professors reject this approach in favor of a more positivist, empirical, and court-oriented understanding. 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. This is vividly illustrated in Presser's chronology, with many of the post-Holmes scholars having worked in the executive branch, almost always to push legal reform for the advancement of a progressive agenda. This trend is represented most strikingly in Chapter 23, profiling President Barack Obama, the apotheosis of the progressive politician-professor.
The 2016 election put this new law professor identity on full display. Following President Donald Trump's victory, one thousand four hundred twenty-four law professors took the unprecedented step (7) of joining a public statement condemning Trump's nomination of Jeff Sessions for attorney general. (8) Just a few months before that, in the month leading up to the election, many right-of-center law professors joined a statement, Originalists Against Trump, opposing the Republican nominee. (9) At the same time, some significant progressive law professors publicly called for secession, and even a military coup, in the event of a Trump victory. (10) And in February 2017, yet another law professor statement was circulated, this one condemning Trump for calling U.S. District Court Judge James L. Robart a "so-called judge," in light of Judge Robart's decision to enjoin Trump's first travel ban Executive Order. (11)
Such 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? More troubling, he probes, what gives law professors the skill to engage in policy, a question suggested by former CIA Director, Leon Panetta, in his criticism of President Obama's tendency to "rel[y] on the logic of a law professor rather than the passion of a leader" (p. 1). This issue, of what skills a law professor can bring to governance, and the related transition in the identity of the law professor, from natural lawyer to policy maker, are central to Presser's love letter.
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. For example, Presser argues that Justice Story was "a great Burkean, and a great conservative" (p. 60), despite the fact that Story favored a robust and expansive judicial power, which of course is at odds with how many contemporary conservatives view the role of federal judges. For Presser--who is "nothing if not a traditionalist" (p. ix), what is often referred to in conservative thought as "a paleoconservative" (12)--the traditional meaning of legal conservatism favors "a moral, altruistic Burkean legal aristocracy" (p. 60), one in which courts are actively engaged in preserving the nation's social mores and traditions for the stability and moral health of society. This is a view increasingly at odds with both the contemporary legal left (which generally favors judicial transformation of these values to promote greater equality) and legal right (which generally favors judicial disengagement from these values to promote democratic governance and decentralization). (13)
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." (14) 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. (15) 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. Chapters 1 through 4 constitute the romance of the love letter, what I have characterized as Falling in Love, the period when, to use Kierkegaard's words from one of his love letters, "a man sees the beloved object for the first time... [and] believes he has seen her long before." (16) This period--which Presser explores through such diverse thinkers as Blackstone, Wilson, Story, and Langdell--is characterized by legal naturalism, when law was imbricated in and tethered to nature. Chapters 5 through 8 cover the Villain, legal realism, which can be characterized as a period when law was denaturalized and thereby seduced away from Presser. The third period, Reconciliation, covers the effort to bring the law back home, through a middle-ground, process-oriented approach to law, explored most directly in Chapters 9 and 11. The fourth period, A Second Infidelity, covers...