Crisis in American law

Attorney Ilya Shapiro is a senior fellow and director of constitutional studies at the Manhattan Institute. As a new hire at Georgetown University Law Center in early 2022, he hadn’t yet started his first day on the job when the school suspended him over a tweet criticizing President Joe Biden’s promise to appoint a Supreme Court justice based on race. The tweet—which Shapiro deleted and admitted was “inartfully phrased”—sparked student backlash and prompted a four-month investigation from the school. Georgetown ultimately cleared him on a technicality but warned he’d be further investigated if he offended again. Arguing the school had created a hostile work environment, Shapiro instead resigned. The experience led to his publication this year of Lawless: The Miseducation of America’s Elites. Here are edited excerpts of our interview.

Why write a book about law school education? Law schools graduate the next generation of leaders and gatekeepers of our legal and political institutions. Today’s left-wing ideological movement is not the decades-old conservative complaint about hippies taking over the faculty lounge. Those hippies of the 1960s Berkeley Free Speech Movement would be considered retrograde white supremacists by today’s radicals. What’s going on now is the undermining of the ideas of due process, equality under the law, free speech, or—for university context—open inquiry in the search for truth. These are truly worrying developments.

Who are the “elites” the title refers to? Sometimes it’s self-anointed elitism. Sometimes it’s who has the biggest megaphone. But generally when I talk about elites I mean those from the highest-ranked law schools: Georgetown, Yale, Stanford, Columbia, University of Chicago (where I attended). These schools graduate a disproportionate number of our federal judges and general counsels of Fortune 500 companies, politicians, and all the rest.

So what’s the purpose of a law school education? It’s not to come up with abstruse legal theories. It’s to train lawyers to respect and uphold the rule of law, the rules of the game on which our republic is based. More concretely, to have critical thinking skills and see all sides of an argument or legal issue so you can better represent your clients’ interests. Or to create better communication skills, written and oral, parsing difficult texts. Law schools are supposed to train lawyers, and they’ve begun to fail.

Does ideological conformity in elite law schools affect the ability of students to become effective lawyers? If you think that certain positions are simply outside the Overton window of permissible possible policy views to be expressed, then you’re really not going to be able to be a good lawyer.

You were born in the Soviet Union. How does that inform your work? I was born in Moscow in the late ’70s. My parents were Soviet Jews, both engineers. We immigrated to Canada when I was a child, and I grew up around Toronto. The only political thing they taught me was that communism was bad. I sort of took it from there, being devoted to classical liberal ideas and not tolerating fools, gaslighting, and government perversions of various kinds.

What was your own law school ­education like? I graduated in the early 2000s from law school. In my generation and prior, we thought it was all postmodern mumbo jumbo, the idea that there’s no objective truth and all of our institutions are illegitimate and needing to be torn down and rebuilt according to a hierarchy of oppressed or oppressor. We thought that thinking had been relegated to sociology departments in the ’80s and ’90s with the damage contained there.

It wasn’t? Ten years ago or so, the critical legal theorists came back with a vengeance. They were aided with a trend toward “safety-­ism” and disruptions from social media and smartphones. Then came DEI (diversity, equity, and inclusion), a racial identitarian queer theory that in the last decade has skewed things. The older baby boomer liberal professors are now afraid of their younger millennial, more activist colleagues. And there are more nonteaching staff than faculty: We have an educational bureaucracy that is not steeped in academic values. The National Association of Diversity Officers in Higher Education has thousands of members who want to promulgate this completely different view of America and its institutions.

We’ve touched on ideological ­deviations and bureaucratic failure. What else? The leadership. Deans, presidents, or provosts are generally not woke radicals or social justice warriors. They’re careerist bureaucrats who’ve succeeded in climbing the greasy pole. The associate dean wants to become dean, the dean wants to become provost, the provost wants to become president, etc. And so they follow the path of least resistance. Most of them just behave amorally. They’ll placate the squeaky wheel.

Do you have a real-life example of a school leader placating the critics? Heather Gerken is dean of Yale Law School and wants to be president of an Ivy League institution one day. In response to ideological scandals at the school, she’s made changes: transferred some people who were creating moblike behavior, hired new faculty who advocate for free speech and academic freedom. She hired a junior professor who had clerked for conservative Justice Samuel Alito—doing things to right the ship. These kinds of changes are certainly an improvement.

Other examples? My Manhattan Institute colleague John Sailer got some documents showing that Texas Tech University, a public school, was hiring biologists based on diversity statements. He published a Wall Street Journal op-ed about that. The very next day, the chancellor of the university said, Nope, we’re not going to do that, that’s not appropriate. So, you know, just a bit of exposure can foment discomfort. There need to be what economists call exogenous shocks, asymmetric pressure from donors, alumni, trustees, state legislatures, and the federal Department of Education. There are lots of players that can push these leaders, kicking and screaming at times, to do better.

What do you see for America’s future if the current trajectory in legal education isn’t stopped? This is a dangerous trajectory law schools are on because lawyers occupy such important positions in our society. I’m less pessimistic than I was when I left Georgetown almost three years ago, but the price of liberty (or even sanity, in this case) is eternal vigilance. And so even if we have passed peak woke and the pendulum is swinging back in higher ed? The jury’s still out, so it’s going to take some sustained effort.