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Review of “Law Professors: The Centuries of Shaping American Law” by Professor Stephen Presser

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Introduction

I have had the distinct pleasure of getting to know Professor Stephen Presser over the past months. He has allowed me to publish numerous articles of his on this blog, such as the recent one on the lawlessness of the Obama Administration, and has graciously responded to my questions about law and laws schools over email. After I reviewed Professor Sheldon’s The Political Philosophy of Thomas Jefferson, Professor Presser offered to send me a copy of his famous and terrific book, Law Professors: Three Centuries of Shaping American Law.

Published in 2017, Law Professors is an excellent summary of how the law has changed over the years and how a select number of influential law professors have affected those changes.

If you’re like me, a layman when it comes to legal issues, you needn’t fear reading Law Professors. Professor Presser, unlike the many leftist scholars described in Fools, Frauds, and Firebrands, wrote the book in a way that is easily understandable to everyone and is meant to truly inform and teach rather than simply spew ideas. It is an excellently written book and one that you must read if you want to learn why the law is the way it is in modern America.

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Summary of Law Professors by Professor Stephen Presser

Professor Presser structures Law Professors in an unique way. Instead of charting the course of the law over time as a pure history, in which the professors that taught and created it are mentioned but not central to the story or information, Law Professors is a composite made up of the lives of over twenty law professors, including two important fictional ones, who somehow shaped the American legal system. They come from different eras, expressed a multitude of different viewpoint, and all imparted a substantive effect on the law.

Note: This is a somewhat longer summary than normal. It is only a small fraction of the information contained in Law Professors, but I think it should help you understand how the American legal system has changed since the Revolution and what men and women are responsible for that change. Because that perspective on our shift from a nation of laws to a nation with a malleable Constitution and highly involved government is so important, I decided to extend this summary and give you a full perspective on the nature and reasons behind the change.

Professor Presser, author of Law Professors
Professor Presser, author of Law Professors

He begins, as is reasonable, with Sir William Blackstone, the 18th Century English legal scholar whose ideas on common law and the English legal system shaped early American views of what our laws should be and, more importantly, why. In the view of Professor Presser, Blackstone defended English common law and the hierarchical system it created, viewing such a system as far preferable to a legislation-based system. Early Americans agreed with some of his ideas and disagreed with others, namely his defense of the aristocracy and monarch. However, despite those disagreements, the ideas of Blackstone have loomed large over the American system ever since he expounded on them in his masterful Commentaries.

After Blackstone, Presser turns to Justice James Wilson, an early American legal scholar and judge who was “second only to Madison as a seminal influence at the Constitutional Convention” and was one of the most important early justices on the Supreme Court.

The next subject of Law Professors is Joseph Story, a key proponent of common law who fought a vociferous “rear-guard action against the Jacksonians for private property” and was a Burkean conservative who still inspires men such Justice Clarence Thomas.

After those early justices and legal scholars, Pressers shifts Law Professors toward more modern times. The first professor of that section is Christopher Columbus Langdell, who created the modern American law school system while a professor at Harvard. Before his time at Harvard, he developed the flexible legal system that defines American contract law to this day and, while at Harvard, he created the case method that even current law students use to learn about the American legal system.

A man who is perhaps one of the most famous SCOTUS justices of all time is the next professor in Law Professors. That man, of course, is Justice Oliver Wendell Holmes. Holmes was one of those legal scholars and justices of the Progressive Era who transformed our vision of the judiciary into one that could engage in legislative tasks. In the words of Professor Presser, that “exercise in Constitutional creativity turned the understanding of the Constitution away from its original meaning, in order to promote a vision of social justice more appealing to the Warren Court.” He was blasted by HL Mencken for making the Constitution elastic and was attacked by others for establishing a system of jurisprudence “without values.”

After Holmes, Presser turns to John Henry Wigmore, a law professor who, like Langdell, “believed that there was or could be a logic to the law” and, unlike Holmes, recognized the inherent danger in attempting to separate laws from morals.

Roscoe Pound, the next professor in Law Professors, was one of the few heroic legal minds willing to stand up against the redistributive state established by FDR’s New Deal and attack it as something that was eroding our liberty.

Next is Karl Llewellyn, who Presser describes as one of the most-cited and prolific legal minds in America. He invented American Legal Realism, the idea that places an emphasis on studying the evolution of law, adopted a critical approach to the use of formalistic reasoning, and is committed to progressive law reform.

Felix Frankfurter follows Llewellyn. According to Professor Presser, he was a champion of civil rights, focused on developing the brightest minds at Harvard Law School and shaping their views on the American legal system, and was an advisor to FDR who remains known because of his interpretation of Constitutional issues.

The next chapter of Law Professors, one of my favorites in the book, is a shift from all the previous chapters. It is about Lewis Eliot, a fictional law professor who was the subject of a series of novels about England during the interwar and post-war years and who is one of the most famous fictional law professors. While a marked shift from the previous chapters, it is quite interesting and fun to read.

Shifting back to real life, Professor Presser next delves into the life and ideas of Herbert Wechsler, a man who tried to “articulate principles to restrain the judiciary, while still allowing it t0 implement the values…that he though were inherent in the Constitution.”

While Wechsler was disturbed by the actions of the Warren Court, the next subject of Law Professors, Ronald Dworkin, sought to justify its actions. He did so, according to Presser, with an approach that resembled an appeal to “natural law” and was premised on his belief in the moral right of that court’s actions.

Following Dworkin is another fictional law professor, Charles Kingsfield. That character shaped the way many Americans viewed law school and law professors, seeing them as cold and focused only on the law.

Once again shifting back to reality, Presser then shows how six law professors- Mark Tushnet, Duncan Kennedy, Peter Gabel, Morton Horwitz, Robert Gordon, and Roberto Unger- established the critical legal studies movement, which “introduced radical politics into what had been an insulated law academy.” Thanks to them, law schools were largely overtaken by leftist thought. As a note, Barack Obama attended Harvard Law School when their ideas were peaking there.

Next in Law Professors is Richard Posner, a judge and professor who established the “Law and Economics” strain of understanding the American legal system that placed a central emphasis on viewing the law through the lens of a cost-benefit analysis to social problems. His thought spans conservatism and libertarianism and is viewed by some as the opposite of Critical Legal Studies, which was a reaction against it.

Following Posner are Bruce Ackerman and Akhil Amar, law professors who “put forth a theory of the Constitution in which its meaning can be amended not just through the procedure in Article V…but simply through great popular movements.”

Catharine MacKinnon is the first woman in Law Professors and is also a famous feminist who put forth extraordinary (and perhaps absurd) ideas about sexual assault on campuses. Her ideas shaped concerns of SCOTUS, even if the empirical underpinnings of them weren’t always factual.

Shifting to another woman, Presser next turns to Mary Ann Glendon in Chapter 18 of Law Professors. Unlike MacKinnon, however, Glendon was no radical feminist. Far from it, in fact. She is, in the words of Professor Presser, “a truly rare commodity in the law professoriate– a conservative Christian woman.” Her work tackled the Lockean and Blackstonian bases of the American legal system and why Americans should not “simply focus on highly individualistic rights,” but rather ought to establish a legal system that encourages “community, solidarity, and social flourishing.”

After Glendon is Paul Carrington, a “thoughtful critic” of American legal education whose Carrington Report highlighted many of the failings of American law schools, especially their failure at preparing students for the real life skills needed to service the needs of their clients.

Antonin Scalia, darling of the right and one of the Supreme Court’s greatest minds, is the next subject of Law Professors. Professor Presser describes Scalia’s view that the Constitution is not a “living document,” his views about a right to privacy not existing in the Constitution, and his powerful notion that justice should interpret rather than make the law.

In a radical shift of pace, the critical race theorist Patricia J. Williams follows Scalia. Presser describes her radical ideas and attempts to transform our view of the law in a commendably objective manner.

The next professor in Law Professors is Cass Sunstein, a man Glenn Beck described at the most dangerous man in America. He was the head regulator of the Obama Administration who wanted to shape human nature using the law and use a benevolent but highly involved government to turn people away from ideas he viewed as unreasonable.

Barack Obama, the 44th president, follows Sunstein. Professor Presser describes Obama’s view that the law is malleable and expounds on how that idea shaped the policies and nature of his administration.

Finally, Professor Presser ends Law Professors by describing how Americans are largely ignorant of the finer points of American governance and jurisprudence and why we are largely uncomfortable with the academic view of “justice.” We expect a government of laws rather than men, but our academics are largely neither defending nor accepting of that vision.


My Take on Law Professors by Professor Stephen Presser

I was a bit apprehensive before reading Law Professors. While I plan on attending law school, I am, for now, someone with very little education on the American legal system and how it works. I love learning about things I know little about, but reading a weighty tome on how certain professors shaped a complex system I am ignorant of worried me. I feared that it would be so complex that I couldn’t understand it.

Thankfully, those fears were wholly unjustified. As I said in the introduction to this review of Law Professors, Professor Presser wrote the book for the layman. Every adult with a functioning brain could read and understand it. Presser’s writing is fun to read, his able to distill highly complex ideas and topics into easily readable passages, and his references to past cases or legal ideas are all fully explained.

It’s, in effect, a primer to the current legal system, a history of how our laws and system have changed because of a few key individuals, and an explanation of why things are the way they are. For Americans, most of whom are like me and know very little about our laws, it’s a must read.

I only had one small gripe with the book, and it’s one that those who read my review of The Political Philosophy of Thomas Jefferson will recognize. That minor complaint is that Professor Presser used footnotes rather than endnotes. I understand why, as they are helpful in quickly explaining certain topics, but I think that, at times, they did more to detract from than contribute to the passages they were meant to support. That’s not because the information in them was somehow bad, but rather because they were so voluminous that they could be distracting from the main point of the actual passage.

That’s just a small quibble, and not one that in any way made me dislike the book. It’s just a small point that future authors might want to consider; endnotes are, in my view, more helpful and less distracting than footnotes.

Other than that small point, I was enamored by every other aspect of Law Professors. The subject matter is incredibly interesting and highly informative. It’s about an important topic but written in a style and with diction that lets non-academics read it. The subjects chosen make sense, even the fictional characters. Overall, it’s a terrific book.


Conclusion

So, would I recommend Law Professors by Professor Presser? Absolutely, and not because of this website’s relationship with Professor Presser. I’m recommending it because I think it is a book that would make America better off it everyone read it.

Too many of us are ignorant of our legal system. We don’t know what the laws are, why they are on the books, or why they are interpreted why they are. SCOTUS has become an extension of the political and cultural battlefield. Academics, when they do write about the law, often do so in such a convoluted way that their ideas are hard to even read, much less understand and learn from.

Law Professors is the solution to those problems. You need to read it.

By: Gen Z Conservative


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