The rise of the conservative legal movement: The battle for control of the law

The Rise of the Conservative Legal Movement: The Battle for Control of the Law

Volumn , Issue , 2012, Pages 1-339

  Teles, Steven M ^a,b  

^a UNIVERSITY OF MARYLAND   (United States)

^b YALE UNIVERSITY   (United States)

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EID: 84923998679     PISSN: None     EISSN: None     Source Type: Book    
DOI: None     Document Type: Book

References (370)

1. Patrick J. Buchanan to Richard Nixon, Washington, November 10, 1972, in From the President: Richard Nixon's Secret Files, ed. Bruce Oudes (New York: Harper and Row, 1989), 558-68. David Yalof observes that Nixon made changing the behavior of the courts a central plank of his 1968 campaign, and explicitly directed his attorney general that he was looking for "young conservative nominees." David Yalof, Pursuit of Justices: Presidential Politics and the Selection of Supreme Court Nominees (Chicago: University of Chicago Press, 1999), 100.
2. Vincent Blasi, ed., The Burger Court: The Counter-Revolution That Wasn't (New Haven: Yale University Press, 1983).
3. William Kristol, "Disappointed, Depressed and Demoralized," Weekly Standard, October 3, 2005.
4. Todd Zywicki, "A Great Mind?" Legal Times, October 10, 2005, http:// mason.gmu.edu/~tzywick2/Legal%20Times%20Mier%200p%20Ed.pdf.
5. Donald Critchlow, Phyllis Schlafly and Grassroots Conservatism: A Woman's Crusade (Princeton: Princeton University Press, 2005); Jane Mansbridge, Why We Lost the ERA (Chicago: University of Chicago Press, 1986).
6. Theda Skocpol, Diminished Democracy: From Membership to Management in American Civic Life (Norman: University of Oklahoma Press, 2003).
7. Steven Teles, Whose Welfare? AFDC and Elite Politics (Lawrence: University Press of Kansas, 1996); Steven Teles, "Conservative Mobilization Against the Activist State," in The Transformation of American Politics, ed. Paul Pierson and Theda Skocpol (Princeton: Princeton University Press, 2007); Jeffrey Henig, "Conservatives and Education, 1980-2005" and Judith Layzer, "Conservatives and the Environment, 1980-2005," in Conservatism and American Political Development, ed. Brian Glenn and Steven Teles (forthcoming).
8. Robert Kagan, Adversarial Legalism: The American Way of Law (Cambridge: Harvard University Press, 2001).
9. Martha Derthick, The Influence of Federal Grants (Cambridge: Harvard University Press, 1970).
10. Skocpol, Diminished Democracy; Matthew Crenson and Benjamin Ginsberg, Downsizing Democracy: How America Sidelined Its Citizens and Privatized Its Public (Baltimore: Johns Hopkins University Press, 2002).
11. An analysis of the connection between a diffuse policy process and the rise of networked forms of coordination can be found in Chris Ansell, "The Networked Polity: Regional Development in Western Europe," Governance, July 2000, 303-33.
12. Jack Walker, Mobilizing Interest Groups in America: Patrons, Professions, and Social Movements (Ann Arbor: University of Michigan Press, 1991).
13. See, for example, Shep Melnick's Regulation and the Courts: The Case of the Clean Air Act (Washington, D.C: Brookings, 1983) and Between the Lines: Welfare Rights in Court (Washington, D.C: Brookings, 1994).
14. Skocpol, Diminished Democracy; Crenson and Ginsberg, Downsizing Democracy; Sidney Milkis, The President and the Parties (Oxford: Oxford University Press, 1993).
15. John Skrentny, The Minority Rights Revolution (Cambridge: Harvard University Press, 2002); Benjamin Ginsberg and Martin Shefter, Politics by Other Means (New York: Norton, 2002); Martha Derthick, Policymaking for Social Security (Washington, D.C: Brookings, 1979).
16. Bryan Jones and Frank Baumgartner, The Politics of Attention: How Government Prioritizes Problems (Chicago: University of Chicago Press, 2005).
17. Jeffrey Berry, The New Liberalism (Washington, D.C: Brookings, 1999).
18. Jo Freeman, "The Political Culture of the Democratic and Republican Party," Political Science Quarterly 101 (1986): 327-56.
19. Alvin Ward Gouldner, The Future of Intellectuals and the Rise of the New Class: A Frame of Reference, Theses, Conjectures, Arguments, and an Historical Perspective on the Role of Intellectuals and Intelligentsia in the International Class Contest of the Modern Era (London: Macmillan, 1979). Neoconservatives also became attracted to the concept of the new class: one expression of their understanding of this phenomenon can be found in B. Bruce-Briggs, ed., The New Class? (New Brunswick, N.J.: Transaction, 1979).
20. Geoffrey Kabaservice, The Guardians: Kingman Brewster, His Circle, and the Rise of the Liberal Establishment (New York: Henry Holt, 2004).
21. Jacob Hacker has persuasively argued that this strategy of "drift" has reduced the risk reduction functions of the American welfare state. Jacob Hacker, "Privatizing Risk without Privatizing the Welfare State: The Hidden Politics of Social Policy Retrenchment in the United States," American Political Science Review 98, no. 2 (2004): 243-60.
22. Robert Dahl, "Decision-Making in a Democracy: The Supreme Court as National Policy-Maker," Journal of Public Law 6, no. 2 (1957): 279.
23. Gerald Rosenberg, The Hollow Hope (Chicago: University of Chicago Press, 1991), 15.
24. Keith Whittington, " 'Interpose Your Friendly Hand': Political Supports for the Exercise of Judicial Review by the United States Supreme Court," American Political Science Review 99, no. 4 (2005): 583-96; J. Mitchell Pickerill and Cornell Clayton, "The Rehnquist Court and the Political Dynamics of Federalism," Perspectives on Politics 2, no. 2 (2004): 233-48; Howard Gillman, "How Political Parties Can Use the Courts to Advance Their Agendas: Federal Courts in the United States, 1875-1891," American Political Science Review 96, no. 3 (2002): 511-24.
25. Bruce Ackerman, We the People: Foundations (Cambridge: Harvard University Press, 1993).
26. Roy B. Flemming and B. Dan Wood, "The Public and the Supreme Court: Individual Justice Responsiveness to American Policy Moods," American Journal of Political Science 41, no. 2 (1997): 468-98; William Mishler and Reginald S. Sheehan, "The Supreme Court as a Countermajoritarian Institution? The Impact of Public Opinion on Supreme Court Decisions," American Political Science Review 87, no. 1 (1993): 87-101; James A. Stimson, Michael B. Mackuen, and Robert S. Erikson, "Dynamic Representation," American Political Science Review 89, no. 3 (1995): 543-65.
27. Jack Balkin and Sanford Levinson, "Understanding the Constitutional Revolution," Virginia Law Review 87, no. 6 (2001): 1045-1104. A similar argument is made by David Adamany, who emphasizes that the Supreme Court is most likely to come into conflict with rising partisan coalitions at precisely the moment when their legitimacy is most in doubt-in their early years. Thus, far from serving the legitimating function that Dahl pointed to, the Supreme Court tends to erode the legitimacy of rising political orders. David Adamany, "Legitimacy, Realigning Elections, and the Supreme Court," Wisconsin Law Review 73:790-846.
28. Pickerill and Clayton, "Rehnquist Court," 236.
29. Stephen Skowronek, The Politics Presidents Make (Cambridge: Harvard University Press, 1997).
30. Balkin and Levinson, "Understanding the Constitutional Revolution," 1088.
31. Charles Epp, The Rights Revolution (Chicago: University of Chicago Press, 1998), 3.
32. Marc Galantner, "Why the 'Haves' Come Out Ahead: Speculations on the Limits of Legal Change," Law and Society Review 9, no. 1 (1974): 95-160; Kevin T. McGuire, "Repeat Players in the Supreme Court: The Role of Experienced Lawyers in Litigation Success," Journal of Politics 57, no. 1 (1995): 187-96; Lee Epstein and Joseph Kobylka, The Supreme Court and Legal Change (Chapel Hill: University of North Carolina Press, 1992).
33. H. W Perry, Jr., Deciding to Decide (Cambridge: Harvard University Press, 1991).
34. Jack Balkin, uBush v. Gore and the Boundary Between Law and Politics," Yale Law Journal 110, no. 8 (2001): 1444-45.
35. Owen Fiss, "Objectivity and Interpretation," Stanford Law Review 34, no. 4 (1982): 739-63.
36. Michael Klarman, From Jim Crow to Civil Rights (Oxford: Oxford University Press, 2004). Recent evidence of this can be found in the Supreme Court's decision in Gratz v. Bollinger, 539 U.S. 244 (2003) at 18-20.
37. Artemus Ward and David Weiden, Sorcerers' Apprentices: 100 Years of Law Clerks At the United States Supreme Court (New York: NYU Press, 2006), 73. Under Burger, Warren and Vinson, the percentage drawn from these seven schools was only slightly lower, 69 percent.
38. Peter Eisinger, The Conditions of Protest Behavior in American Cities (Madison, Wise: Institute for Poverty Research, 1973);
39. Hanspeter Kriesi, "Political Context and Opportunity," in The Blackwell Companion to Social Movements, ed. David Snow, Sarah Soule, and Hanspeter Kriesi (Oxford: Blackwell, 2004), 67-90;
40. H. P. Kitschelt, "Political Opportunity Structures and Political Protest: Anti-Nuclear Movements in Four Democracies," British Journal of Political Science 16, no. 1 (1986): 57-86.
41. John McCarthy and Mayer Zald, "Resource Mobilization and Social Movements: A Partial Theory," American Journal of Sociology 82, no. 6 (1977): 1212-41.
42. Marshall Ganz, Five Smooth Stones: Strategy, Leadership, and the California Agriculture Movement (Oxford: Oxford University Press, forthcoming).
43. Derthick, Policymaking for Social Security; Marc Landy, Marc Roberts, and Steven Thomas, The Environmental Protection Agency: Asking the Wrong Questions (Oxford: Oxford University Press, 1994);
44. Richard Harris and Sidney Milkis, The Politics of Regulatory Change: A Tale of Two Agencies (Oxford: Oxford University Press, 1996), Skrentny, The Minority Rights Revolution.
45. Critchlow, Phyllis Schlafly; Lisa McGirr, Suburban Warriors: The Origins of the New Right (Princeton: Princeton University Press, 2001).
46. Antonio Gramsci, Selections from the Prison Notebooks, trans. Quentin Hoare and Geoffrey Nowell Smith (London: Lawrence and Wishart, 1971), 182. David Plotke refers to this as the "common sense" produced by a dominant political party. Plotke, Democratic Political Order.
47. Peter Bachrach and Morton Baratz, "Two Faces of Power," American Political Science Review 56, no. 4 (1962): 947-52.
48. Similar arguments are made in Deborah Stone, "Causal Stories and the Formation of Policy Agendas," Political Science Quarterly 104, no. 2 (1989): 281-300;
49. Roger Cobb and Marc Howard Ross, Cultural Strategies of Agenda Denial (Lawrence: University Press of Kansas, 1997);
50. Frank Baumgartner and Bryan Jones, Agendas and Instability in American Politics (Chicago: University of Chicago Press, 1993); Steven Lukes, Power: A Radical View (London: Macmillan, 1974).
51. Mark Blyth, Great Transformations (Cambridge: Cambridge University Press, 2002)
52. Frank Knight's classic Risk, Uncertainty and Profit (New York: Harper and Row, 1965).
53. Traci Sawyers and David Meyer emphasize that existing opportunities may simply be "missed" due to lack of sufficient mobilization. "Missed Opportunities: Social Movement Abeyance and Public Policy," Social Problems 46, no. 2 (1999): 187-206.
54. Pierre Bourdieu, "The Forms of Capital," in Handbook for Theory and Research for the Sociology of Education, ed. J. G. Richardson (Westport, Conn.: Greenwood Press, 1986), 241-58; Pierre Bourdieu, The State Nobility: Elite Schools in the Field of Power, trans. Lauretta C. Clough (Stanford: Stanford University Press, 1996).
55. Scott Frickel and Neil Gross, "A General Theory of Scientific/Intellectual Movements," American Sociological Review 70, no. 22 (2005): 204-32.
56. Mark A. Smith, The Right Talk: How Conservatives Transformed the Great Society into the Economic Society (Princeton: Princeton University Press, 2007).
57. Erik Bleich, Race Politics in Britain and France (Cambridge: Cambridge University Press, 2003), 26-27. For a classic article on framing and social movements, see David A. Snow, E. Burke Rochford, Jr., Steven K. Worden, and Robert D. Benford, "Frame Alignment Processes, Micromobilization, and Movement Participation," American Sociological Review 51, no. 4 (1986): 464-81.
58. Jane Mansbridge, "The Making of Oppositional Consciousness," in Oppositional Consciousness: The Subjective Roots of Social Protest, ed. Jane Mans bridge and Aldon Morris (Chicago: University of Chicago Press, 2001), 7. The concept of oppositional consciousness is connected to what Doug McAdam has called "cognitive liberation." See Doug McAdam, Political Process and the Development of the Black Insurgency, 1930-1970 (Chicago: University of Chicago Press, 1982), 48-51.
59. Chris Ansell, "Symbolic Networks: The Realignment of the French Working Class, 1887-1894," American Journal of Sociology 103, no. 2 (1997): 359-90.
60. Kevin Smart, Principles and Heresies: Frank S. Meyer and the Shaping of the American Conservative Movement (Wilmington, Del.: ISI, 2002). See also George Nash, The Conservative Intellectual Movement in America Since 1945 (New York: Basic Books, 1976); and Jeffrey Hart, The Making of the American Conservative Mind: National Review and Its Times (Wilmington, Del.: ISI Press, 2005).
61. James Coleman, "Social Capital in the Creation of Human Capital," American Journal of Sociology 94, Supplement (1988): 118.
62. Gerald Marwell and Pamela Oliver, The Critical Mass in Collective Action: A Micro-Social Theory (Cambridge: Cambridge University Press, 1993).
63. Marc Granovetter, "The Strength of Weak Ties," American Journal of Sociology 78, no. 6 (1973): 1360-80.
64. Marc Granovetter, "Economic Action and Social Structure: The Problem of Embeddedness," American Journal of Sociology 91, no. 3 (1985): 481-510.
65. Joel Podolny and Karen Page, "Network Forms of Organization," Annual Review of Sociology 24 (1998): 62-64.
66. Randall Collins, The Sociology of Philosophies: A Global Theory of Intellectual Change (Cambridge: Harvard University Press, 1998).
67. Teles, "Conservative Mobilization."
68. James Q. Wilson, Political Organizations (Princeton: Princeton University Press, 1995);
69. Charles Perrow, "The Analysis of Goals in Complex Organizations," American Sociological Review 26, no. 6 (1961): 854-66.
70. Bob Edwards and John McCarthy, "Strategy Matters: The Contingent Value of Social Capital in the Survival of Local Social Movement Organizations," Social Forces 83, no. 2 (2004): 621-51.
71. Alan Jacobs, "The Politics of Investment: Theorizing Governments' Policy Choices for the Long Term," paper delivered to the American Political Science Association Meeting, September 2006; Teles, "Conservative Mobilization."
72. Spencer Weber Waller, Thurman Arnold (New York: NYU Press, 2005), 126-27, 151-52. The most important of these was Coca-Cola. Thurman Arnold had built a close relationship with Coke's president, Robert Woodruff, when he was assistant attorney general in the Antitrust Division, and leveraged this contact to sign up the company as Arnold, Fortas and Porter's first major client.
73. Peter Irons, The New Deal Lawyers (Princeton: Princeton University Press, 1982), 298.
74. Laura Kalman, Abe Fortas: A Biography (New Haven: Yale University Press, 1992), 133.
75. Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s (Union, N.J.: Lawbook Exchange, 2001), 207.
76. Elizabeth Gaspar Brown, Legal Education at Michigan, 1859-1959 (Ann Arbor: University of Michigan Law School, 1959), 85-87.
77. Sandra Epstein, Law at Berkeley: The History of Boalt Hall (Berkeley, Calif.: IGS Press, 1997), 203, 224, 225.
78. Robert Gordon, "Professors and Policymakers: Yale Law School Faculty in the New Deal and After," in History of the Yale Law School: The Triennial Lectures, ed. Anthony Kronman (New Haven: Yale University Press, 2004), 84-91.
79. Arthur Sutherland, The Law at Harvard: A History of Ideas and Men, 1817-1967 (Cambridge: Harvard University Press, 1967), 311.
80. Jenna Rae McNeil, Groundwork: Charles Hamilton Houston and the Struggle for Civil Rights (Philadelphia: University of Pennsylvania Press, 1983), 71.
81. Risa Golubuff, The Lost Promise of Civil Rights (Cambridge: Harvard University Press, 2007);
82. Kenneth Mack, "Rethinking Civil Rights Lawyering and Politics in the Era Before Brown," Yale Law Journal 115, no. 2 (2005): 256.
83. Samuel Walker, In Defense of American Liberties: A History of the ACLU (New York: Oxford University Press, 1990), 86.
84. Jerold Auerbach, Unequal Justice: Lawyers and Social Change in Modern America (Oxford: Oxford University Press, 1977), 192.
85. Annual Report of the American Bar Association (Chicago: Headquarters Office, 1950), 339.
86. President's Annual Address, "The Lawyer's Responsibility to America," in Annual Report of the American Bar Association (Chicago: Headquarters Office, 1951), 443.
87. Richard Abel, American Lawyers (Oxford: Oxford University Press, 1991), 132.
88. Ford Foundation Annual Report 1958 (New York: Ford Foundation, 1958), 40.
89. Annual Report of the American Bar Association (Chicago: Headquarters Office, 1963), 440-41.
90. Earl Johnson, Justice and Reform: The Formative Years of the OEO Legal Services Program (New York: Russell Sage, 1974), 23.
91. Martha Davis, Brutal Need: Lawyers and the Welfare Rights Movement, 1960-1973 (New Haven: Yale University Press, 1993), chapter 3; Dorothy J. Samuels, "Expanding Justice: A Review of the Ford Foundation's Legal Services Program," Ford Foundation Archives, January 1984, 18.
92. Robert Gordon, "The Legal Profession," in Looking Back at Law's Century, ed. Austin Sarat, Bryant Garth, and Robert Kagan (Ithaca, N.Y.: Cornell University Press, 2002), 32.
93. Susan Lawrence, The Poor in Court (Princeton: Princeton University Press, 1990), appendix C
94. Annual Report of the American Bar Association (Chicago: Headquarters Office, 1961), 527.
95. Annual Report of the American Bar Association (Chicago: Headquarters Office, 1965), 392-93.
96. Annual Report of the American Bar Association (Chicago: Headquarters Office, 1966), 426.
97. Annual Report of the American Bar Association (Chicago: Headquarters Office, 1967), 470.
98. Annual Report of the American Bar Association (Chicago: Headquarters Office, 1970), 709.
99. Annual Report of the American Bar Association (1969), 439; Annual Report of the American Bar Association (1970), 664-65.
100. Stephen Botein, " 'What We Shall Meet Afterwards in Heaven': Judgeship as a Symbol for Modern American Lawyers," in Professions and Professional Ideologies in America, ed. Charles Geison (Chapel Hill: University of North Carolina Press, 1983), 49-69.
101. Edward Kuhn, "The ABA's Number One Issue," Time, August 20, 1965, http://www.time.eom/time/magazine/article/0,9171,841981,00.html.
102. McGeorge Bundy, Action for Equal Opportunity (New York: Ford Foundation, 1966), 3, http://www.fordfound.org/elibrary/documents/0325/toc.cfm. The text was delivered as a speech to the Urban League, August 2, 1966.
103. Heather MacDonald, "This Is the Legal Mainstream?" City Journal, Winter 2006, http://www.city-journal.org/html/16_l_law_schools.html.
104. "Enhancing Theory with Practice: Evaluation of Four Years of Work by the Council on Legal Education for Professional Responsibility (CLEPR)-a Foundation-supported Institution to Promote the Use of Clinical Education in Law Schools," Project Evaluation, Division of National Affairs, Ford Foundation Archives (#002165), November 1972, 1.
105. John Randall, Presidential Address, ABA National Meeting, Washington, D.C, August 1960, Annual Report of the American Bar Association (Chicago: Headquarters Office, 1960), 480.
106. Ralph Brown, David Cavers, Harry Kalvern, and Murray Schwartz, "Evaluation of the Professional Responsibility Program of the National Council of Legal Clinics," Ford Foundation Archives (#000417), May 1965.
107. "Docket Excerpt-Board of Trustees Meeting, 3/28-29/68. National Affairs (Government and Law) 68-894. Establishment of a Council on Legal Education in Professional Responsibility," Ford Foundation Archives, March 1968, 2.
108. Robert Stevens, "Law Schools and Law Students," Virginia Law Review 59, no. 4 (1973): 579-80.
109. George Hicks, "The Conservative Influence of the Federalist Society on the Harvard Law School Student Body," Harvard Journal of Law and Public Policy 29, no. 2 (2006): 634.
110. Ford Foundation Annual Report 1972 (New York: Ford Foundation, 1972), 6.
111. Laura Holland, "Invading the Ivory Tower: The History of Clinical Education at Yale Law School," Journal of Legal Education 49, no. 4 (1999): 504-34.
112. See, for example, J. Peter Byrne, "Academic Freedom and Political Neutrality in Law Schools: An Essay on Structure and Ideology in Professional Education," Journal of Legal Education 43 (1993): 315.
113. Donna Fossum, "Law Professors: A Profile of the Teaching Branch of the Legal Profession," American Bar Foundation Research Journal 5, no. 3 (1980): 505.
114. Laura Kalman, The Strange Career of Legal Liberalism (New Haven: Yale University Press, 1996), 60.
115. Everett Carl Ladd and Seymour Martin Lipset, The Divided American Academy (New York: McGraw Hill, 1975).
116. John McGinnis, Matthew Schwartz, and Benjamin Tisdell, "The Patterns and Implications of Political Contributions by Elite Law School Faculty," Georgetown Law Journal 93, no. 4 (2005): 1175, 1184.
117. Charles Reich, "Midnight Welfare Searches and the Social Security Act," Yale Law Journal 72, no. 7 (1963): 1347-60; "The New Property," Yale Law Journal 73, no. 5 (1964): 733-87; "The Law of the Planned Society," Yale Law Journal 75, no. 8 (1966): 1227-70; "Mr. Justice Black and the Living Constitution," Harvard Law Review 76, no. 4 (1963): 673-754.
118. Reich, "Mr. Justice Black," 745.
119. Reich, The New Property 782-83
120. Elizabeth Bussiere, "The New Property Theory of Welfare Rights: Promises and Pitfalls," Good Society 13, no. 2 (2004): 6.
121. Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indianapolis: Bobbs-Merrill, 1962), 16ff.
122. Fiss, "Objectivity and Interpretation," 741.
123. See also Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1977); Laurence Tribe, American Constitutional Law (Mineola, N.Y: Foundation Press, 1978); Bruce Ackerman, Social Justice in the Liberal State (New Haven: Yale University Press, 1980); Owen Fiss, "Groups and the Equal Protection Clause," Philosophy and Public Affairs 5, no 2 (1976): 107-77.
124. Martin Shapiro, "Interest Groups and Supreme Court Appointments," Northwestern University Law Review 84 (1990): 955. There is still not, as of 2006, a significant constitutional law casebook written by a conservative or libertarian, although a few are being prepared.
125. Mark Tushnet, "Truth, Justice and the American Way: An Interpretation of Public Law Scholarship in the Seventies," Texas Law Review 57 (1979): 1319.
126. Duncan Kennedy, "American Constitutionalism as Civil Religion: Notes of an Atheist," Nova Law Review 19 (1995): 909.
127. "Advocacy, Law and the Public Interest" (Confidential Information Paper), Ford Foundation Archives, March 1970, 3.
128. Jeffrey Berry, Lobbying for the People (Princeton: Princeton University Press, 1977), 51.
129. Robert Rabin, "Lawyers for Social Change: Perspectives on Public Interest Law," Stanford Law Review 28 (January 1976): 236.
130. Anthony King, ed., The New American Political System, 2nd ed. (Washington, D.C: American Enterprise Institute, 1990); Marc Landy and Martin Levin, The New Politics of Public Policy (Baltimore: Johns Hopkins University Press, 1995).
131. Marc Landy and Martin Levin, The New Politics of Public Policy (Baltimore: Johns Hopkins University Press, 1995)
132. Daniel Patrick Moynihan, "The Professionalization of Reform," Public Interest, Fall 1965.
133. Julian Zelizer, On Capitol Hill (Oxford: Oxford University Press, 2004).
134. Richard Stewart, "The Reformation of American Administrative Law," Harvard Law Review 88, no. 8 (1975): 1667-1813.
135. Joseph Smith, "Judicial Procedures as Instruments of Political Control: Congress' Strategic Use of Citizen Suits," Legislative Studies Quarterly: forthcoming; Joseph Smith, "Congress Opens the Courthouse Doors: Statutory Changes to Judicial Review Under the Clean Air Act," Political Research Quarterly 58 (March 2005): 139-49; Michael McCann, Taking Reform Seriously (Ithaca, N.Y: Cornell University Press, 1986), 61-67; Thomas Burke, Lawyers, Lawsuits and Legal Rights: The Battle over Litigation in American Society (Berkeley and Los Angeles: University of California Press, 2002).
136. William Lunch, The Nationalization of American Politics (Berkeley and Los Angeles: University of California Press, 1987).
137. David Kirp and Donald Jensen, eds., School Days, Rule Days (Philadelphia: Falmer Press, 1986).
138. Ronald Formisano, Boston Against Busing (Chapel Hill: University of North Carolina Press, 2003); Jennifer Hochschild, The New American Dilemma: Liberal Democracy and School Desegregation (New Haven: Yale University Press, 1984). Hochschild is quite clear that school desegregation could not be accomplished through normal, participatory political processes.
139. Carlyle Hall, "CLIPI's 30 Most Important Cases," August 1997, http:// www.clipi.org/pdf/importantmatters.pdf; see also New York Times, February 8, 1975.
140. Michael Greve, "Why Defunding the Left Failed," Public Interest, Fall 1987,91-106.
141. Peter Swenson, Capitalists Against Markets (Oxford: Oxford University Press, 2002).
142. David Vogel, "Why Businessmen Distrust Their State: The Political Consciousness of American Corporate Executives," British Journal of Political Science 8, no. 1 (1978): 45-78.
143. The classic study of asymmetric information is George Akerlof, "The Market for 'Lemons': Quality Uncertainty and the Market Mechanism," Quarterly Journal of Economics 84, no. 3 (1970): 488-500.
144. David Yalof, Pursuit of Justices (Chicago: University of Chicago Press, 2001), 97-132.
145. George Bisharat, "Right Lawyers for the Right Time: The Rise of the Pacific Legal Foundation," unpublished manuscript.
146. Hueter interview. Also see James Singer, "Liberal Public Interest Law Firms Face Budgetary, Ideological Challenges," National Journal, December 8, 1979, 2055.
147. Jefferson Decker, "The Conservative Non-Profit Movement and the Rights Revolution," paper delivered to the American Society of Legal Historians, Baltimore, November 18, 2006, 2-3.
148. Lee Epstein, Conservatives in Court (Knoxville: University of Tennessee Press, 1985), 133.
149. Lewis Powell, "Attack on the American Free Enterprise System," confidential memorandum to the United States Chamber of Commerce, August 23, 1971, 2, www.pbs.org/wnet/supremecourt/personality/sources_documentl3.html.
150. R. McGreggor Cawley, Federal Land, Western Anger: The Sagebrush Rebellion and Environmental Politics (Lawrence: University Press of Kansas, 1996).
151. Vogel, "Why Businessmen Distrust Their State."
152. Chip Mellor, "Free Market Comes Full Circle," Carry The Torch, May 1995, http://www.ij.org/publications/torch/ctt_5_95.html. 29. Horowitz was appointed chief counsel of the Office of Management and Budget in the first term of the Reagan administration, and is now a senior fellow at the Hudson Institute.
153. Michael Horowitz, "The Public Interest Law Movement: An Analysis with Special Reference to the Role and Practices of Conservative Public Interest Law Firms," unpublished manuscript prepared for the Scaife Foundation, 1980, 24.
154. Horowitz, "Public Interest Law Movement," 26.
155. Horowitz, "Public Interest Law Movement," 83.
156. McCann, Taking Reform Seriously. John Patrick Diggins makes the point in Up From Communism (New York: Columbia University Press, 1993) that many of the former communists among the early leaders of the conservative movement shared the temperament-if not the ideology-of their former comrades. It was specifically this nonconservative temperament that Horowitz sought to deploy for conservative ends.
157. Dan Burt, Abuse of Trust: A Report on Ralph Nader's Network (Chicago: Regnery Gateway, 1982).
158. Karen Donovan, V. Goliath: The Trials of David Boies (New York: Knopf, 2005), 46.
159. Bruck, "Burt Deserted the General," 118.
160. Nancy Blodgett, "Ralph Naders of the Right," American Bar Association Journal 70 (May 1984): 71. Here Burt is listed in the profiles of major conservative players.
161. Capital Legal Foundation, Proposal for Funding, "Barriers to Entry Project," appended to a letter from Dan Burt to James Piereson, August 8, 1986, 5-6.
162. "The Center for Constitutional Litigation," 1985, 1 (no author on document, but authored jointly by Chip Mellor and Clint Bolick).
163. Pacific Research Institute, "Proposal for Center," 3-4.
164. Center for Individual Rights, "A Brief Description of Program Activities," 1989, 11.
165. Clint Bolick, Unfinished Business (San Francisco: Pacific Research Institute for Public Policy, 1991).
166. Clint Bolick, "Clinton's Quota Queen," Wall Street Journal, April 30, 1993.
167. Ronald Coase, "Law and Economics at Chicago," Journal of Law and Economics 36, no. 1 (1993): 243.
168. Barbara Fried, The Progressive Assault on Laissez-Faire: Robert Hale and the First Law and Economics Movement (Cambridge: Harvard University Press, 1998).
169. Henry Simons, "Some Comments on University Policy," Henry Simons Papers, University of Chicago Special Collections, Box 8, Folder 8, pp. 23, 25.
170. Henry Simons, Personal Income Taxation: The Definition of Income as a Problem of Fiscal Policy (Chicago: University of Chicago Press, 1938).
171. Henry Simons, A Positive Plan for Laissez-Faire: Some Proposals for a Liberal Economic Policy (Chicago: University of Chicago Press, 1936).
172. Juan Gabriel Valdes, Pinochet's Economists: The Chicago School in Chile (Cambridge: Cambridge University Press, 1995).
173. Henry Simons, "Memorandum I On a Proposed Institute of Political Economy," Henry Simons Papers, University of Chicago Special Collections, Box 8, Folders 8-9.
174. R. M. Hartwell, A History of the Mont Pelerin Society (Indianapolis: Liberty Fund, 1995), 90.
175. Steven Teles and Daniel Kenney, "Spreading the Word," in Growing Apart?: America and Europe in the 21st Century, ed. Jeffrey Kopstein and Sven Steinmo (Cambridge: Cambridge University Press, 2007).
176. Albert Jay Nock, Memoirs of a Superfluous Man (New York: Harper and Brothers, 1943), but it can also be seen in the conclusion of Alisdair Mclntyre's After Virtue: A Study in Moral Theory (Notre Dame, Ind.: University of Notre Dame Press, 1984).
177. Coase, "Law and Economics at Chicago," 246.
178. Simons, "Memorandum I," 1.
179. Gary Becker, "Crime and Punishment: An Economic Approach," Journal of Political Economy 76, no. 2 (1968): 169-217.
180. George Priest, "Henry Manne and the Market Measure of Intellectual Influence," Case Western Reserve University Law Review 50 (Winter 1999): 325. It is generally accepted today that while Economic Analysis of Law was a powerful intellectual statement, Posner's grasp on economic concepts was, at times, uneven.
181. Roberta Romano, "After The Revolution in Corporate Law," Journal of Legal Education 55 (September 2005): 342.
182. Romano, "After the Revolution."
183. Michael Mandel, "Going for the Gold: Economists as Expert Witnesses," Journal of Economic Perspectives 13, no. 2 (1999): 115-16.
184. Amy Bach and Matt Siegel, "Midas Touch in the Ivory Tower: Selling Law and Economics," American Lawyer, April 1994, 61.
185. Henry Manne, "Mergers and the Market for Corporate Control," Journal of Political Economy 73, no. 2 (April 1965). Manne's direct target was Adolph Berle and Gardiner Means's classic of old-style, liberal law and economics, The Modern Corporation and Private Property (New York: McMillan, 1936).
186. Henry Manne, Insider Trading and the Stock Market (New York: Free Press, 1966).
187. S. M. Amadae and Bruce Bueno de Mesquita, "The Rochester School: The Origins of Positive Political Theory," Annual Review of Political Science 2, no. 1 (1999): 269-95;
188. Jonathan Cohn, "When Did Political Science Forget about Politics?" New Republic, October 25, 1999, http://www.nuff.ox.ac.uk/users/Kayser/TNR%20Cohn.pdf.
189. W Allen Wallis, "Report on Law Schools," January 1968, 3-4.
190. Henry Manne, "An Intellectual History of the George Mason University School of Law," 1993, http://www.law.gmu.edu/econ/history.html. The Rochester bar seemed to believe that a new law school at Rochester would lead to a glut of lawyers in the area. The school's heavy dependence on the stock price of Xerox and Eastman Kodak may have played a role after Manne left, but during the time he was there the price of both companies increased considerably.
191. See, for example, Ralph Winter, "State Law, Shareholder Protection, and the Theory of the Corporation," Journal of Legal Studies 6, no. 2 (1997): 251-92
192. Douglas Ginsburg, "Making Automobile Regulation Work: Policy Options and a Proposal," Harvard Journal of Law and Public Policy 2 (1979): 74-102. Ginsburg also taught, in 1979, in an LEC advanced course for law professors, and became a close friend and advisor to Manne.
193. Priest, "Henry Manne."
194. Randall Collins, The Sociology of Philosophies (Cambridge: Harvard University Press, 1998).
195. Henry Butler, "The Manne Programs in Economics for Federal Judges," Case Western Reserve Law Review 50, no. 2 (1999): 355.
196. Butler, "The Manne Programs," 370.
197. Manne, "How Law and Economics Was Marketed," 319.
198. The propriety of the LEC seminars has been defended by a frequent participant, James Q. Wilson, in "Junket Science?" Wall Street Journal, July 10, 2006.
199. This strategy was later followed by other conservative organizations inside the university, including Robert George's James Madison Program at Princeton University. Timothy Webster, "A New Birth of Civic Education on Campus," Philanthropy 16, no. 2 (2002): 17-23.
200. "Chronology of Events with Supporting Documents, Re: Law and Economics Center Shift to Emory University," November 22, 1980, 5.
201. Sanford Kadish and Monrad Paulsen, Criminal Law and Its Processes: Cases and Materials (Boston: Little, Brown, 1969).
202. Michael Graetz and Charles Whitebreak, "Monrad Paulsen and the Idea of a University Law School," Virginia Law Review 67, no. 3 (1981): 445.
203. Michael Levine, " 'Law and . . .' in Theory and Practice: The USC Style and Its Influence," USC Law Review 74 (November 2000): 225.
204. William Niskanen, Bureaucracy and Representative Government (Chicago: Aldine, Atherton, 1971);
205. Roger Noll, "The Nature and Causes of Regulatory Failure," Administrative Law Review 23, no. 4 (1971): 424-37; Olson, Logic of Collective Action.
206. "Agenda Influence and Its Implications," Virginia Law Review 63, no. 4 (1977): 561-604. At UVA, an early example of economist-lawyer collaboration using public choice is Jerry Mashaw, Charles Goetz, F. Goodman, Warren Schwartz, et. al., Social Security Hearings and Appeals: A study of the Social Security Administration Hearing System (Lexington, Mass.: Lexington Books, 1978).
207. Ehrlich became famous in the mid-1970s for his work on the economics of crime, especially "The Deterrent Effect of Capital Punishment-A Question of Life and Death," American Economic Review 65, no. 3 (1975): 397-417.
208. Charles Goetz and Robert Scott, "Liquidated Damages, Penalties, and the Just Compensation Principle: A Theory of Efficient Breach," Columbia Law Review 77 (1977): 554.
209. Randall Collins, The Sociology of Philosophies (Cambridge: Harvard University Press, 1998).
210. Thomas D. Morgan, "Status Report on the School of Law, Emory University," July 15, 1981,30-31.
211. Olin Foundation, "A Report on the Law and Economics Program at Emory University," Olin Foundation Archives, 1983, 1.
212. Olin Foundation, "Report on the Law and Economics Program," 1.
213. F. Stuart Gulley, The Academic President as Moral Leader: James T. Laney at Emory University, 1977-1993 (Macon, Ga.: Mercer University Press, 2001), 174.
214. Memo from Roger Miller, "Re: Location of LEC Building," no date, attached to March 31, 1982 letter from Lewis Rockwell.
215. Olin Foundation, "Report on the Law and Economics Program," 2.
216. Olin Foundation, "Report on the Law and Economics Program," 3.
217. "Statement of Purpose: Chattahoochee Institute," attached to letter from Manne to Jim Cowart, May 17, 1983.
218. Expanded activities come from document titled "New Institute," attached to letter of April 25, 1983.
219. John Miller, A Gift of Freedom: How the John M. Olin Foundation Changed America (New York: Encounter, 2005), chapter 3.
220. Olin Grant Proposal Record (for Economics Institute for Federal Judges), Olin Foundation Archives, November 1, 1985.
221. David Brock, Blinded by the Right: The Conscience of an Ex-Conservative (New York: Crown, 2002).
222. "Proposal for a Symposium on the Legal Ramifications of the New Federalism," Federalist Society Archives, 1982, 1.
223. "Proposal To Form a National Conservative Legal Organization," Federalist Society Archives, October 15, 1982.
224. Hicks, "Conservative Influence," 650; Otis interview.
225. Marissa Martino Golden, What Motivates Bureaucrats? Politics and Administration During the Reagan Administration (New York: Columbia University Press, 2000).
226. Sidney Blumenthal, "Quest for Lasting Power: A New Generation is Being Nurtured To Carry the Banner for the Right," Washington Post, September 25, 1985.
227. "How To Form a Conservative Law Student Group," Chicago Federalist Society, Harvard Society for Law and Public Policy, Stanford Foundation for Law and Economic Policy, Yale Federalist Society, and the Leadership Institute, 1982,3.
228. "How to Form a Conservative Law Student Group," 4.
229. Hugh Heclo, A Government of Strangers: Executive Politics in Washington (Washington, D.C: Brookings, 1977).
230. Federalist Society for Law and Public Policy Studies, Form 990, 1983-2000.
231. Figures taken from "Campaign for the Federalist Society," Federalist Society Archives, 1997, 14.
232. Eugene Meyer to Michael Joyce, August 20, 1984.
233. "Development Board for Federalist Society," Federalist Society Archives, February 1988.
234. "Confirmation Hearing on the Nominations of Michael Chertoff and Viet D. Dinh to be Assistant Attorneys General," Hearing before the committee on the Judiciary, United States Senate, 107th Cong., 1st sess., May 9, 2001, Senate Hearing 107-298.
235. Senator Orrin Hatch, "In Defense of the Federalist Society," 108th Cong., 1st sess., Congressional Record (January 9, 2003). S120-3.
236. "The Federalist Society Litigation Center," Federalist Society Archives, summer 1985.
237. "Federalist Society Litigation Center: Status Report," Federalist Society Archives, May 5, 1986.
238. "Federalist Society Litigation Task Force," Federalist Society Archives, date uncertain, 1985-1986.
239. Federalist Society, "Pro-Bono Activity at the AmLawlOO," 2003, http://www.fed-soc.org/resources/id.45/default.asp.
240. "Federalist Society Recommendation and Evaluation of Judges," Federalist Society Archives, 1983-1984.
241. David D. Kirkpatrick, "In Alito, GOP Reaps Harvest Planted in 1982," New York Times, January 30, 2006.
242. Jeanne Cummings, "Point Man For Miers Juggles Allegiances," Wall Street Journal, October 26, 2005, A4.
243. Minutes, Federalist Society for Law and Public Policy Studies, Organizational Meeting, July 31, 1982, Westpark Hotel, Rosslyn, Va., Item 3.
244. Theda Skocpol, "Associations Without Members," American Prospect 10, no. 45 (1999), www.prospect.org/print/V10//45/skocpol-t.html.
245. Francesca Polletta, Freedom Is an Endless Meeting: Democracy in American Social Movements (Chicago: University of Chicago Press, 2002).
246. Jo Freeman, "Crises and Conflicts in Social Movement Organizations," Chrysalis 5 (1978): 43-51.
247. Dinesh D'Souza, Letters to a Young Conservative (New York: Basic Books, 2002), 33-34.
248. Cass R. Sunstein, "Deliberative Trouble: Why Groups Go to Extremes," Yale Law Journal 110, no. 1 (2000): 92-94. This suggests that the Society and its liberal sister, the American Constitution Society, do not simply reflect ideological polarization, but may help to accelerate it by increasing the frequency of personal interactions in ideologically homogeneous settings.
249. Russell Van Patten, then-head of the Yale Federalist Society, who noted back in 1986 that "there are a lot of closet Federalists." Jill Abramson, "Right Place at the Right Time," American Lawyer, June 1986, 99.
250. "Three Year Expansion Plan for the Development of the Federalist Society Into An Effective National Conservative Legal Organization," Federalist Society Archives, 1984.
251. Timur Kuran, Private Truths, Public Lies: The Social Consequences of Preference Falsification (Cambridge: Harvard University Press, 1995).
252. "Federalist Society General Proposal, 1983-1984," Federalist Society Archives, 6.
253. "Three Year Expansion Plan," 2.
254. "Federalist Society General Proposal, 1984-1985," Federalist Society Archives, 6.
255. "From the Editors," ABA Watch 1, no. 1 (August 1996): 2. http://www.fed-soc.org/Publications/ABAwatch/Augustl996/editors.htm.
256. Federalist Society, "Interim Report on the E.L. Wiegand Practice Groups," Federalist Society Archives. This report was submitted to Kristen Avansino by Eugene Meyer.
257. "Proposal to the John M. Olin Foundation Inc. for the John M. Olin Fellows in Law for the 2000-2001 Academic Year," Federalist Society Archives, March 15, 1999, 3.
258. Anne Schneider-Mayerson, "Harvard Law on a Heterodox Spree, Listing to the Right," New York Observer, December 5, 2005, http://www.observer.com/printpage.asp?iid=119808dc=News+Story+3, accessed December 17, 2005.
259. See Steven Teles, "Conservative Counter-Mobilization and the Modern Administrative State," in Transformations of American Politics, ed. Paul Pierson and Theda Skocpol (Princeton: Princeton University Press, 2007).
260. John Judis, The Paradox of American Democracy: Elites, Special Interests and the Betrayal of the Public Trust (New York: Pantheon, 2000), while a useful history of this establishment is Kabaservice, The Guardians.
261. Morton Horwitz, "Law and Economics: Science or Politics?" Hofstra Law Review 8, no. 4 (1980): 905.
262. Bryan Caplan, "What Makes People Think Like Economists? Evidence on Economic Cognition from the 'Survey of Americans and Economists on the Economy,' " Journal of Law and Economics 44, no. 2 (2001): 414.
263. Donald Downs, Cornell '69: Liberalism and the Crisis of the American University (Ithaca, N.Y: Cornell University Press, 1999).
264. Minutes, Board of Trustees Meeting, Olin Foundation Archives, July 5, 1979,4.
265. Minutes, John M. Olin Foundation Board of Trustees Meeting, Olin Foundation Archives, January 22, 1981, 1.
266. "Report to the Trustees on the Future Direction of the Grants Program" (prepared by the Foundation Staff and reviewed by the Steering Committee), Olin Foundation Archives, November 23, 1982, 6.
267. Mark Tushnet, "Critical Legal Studies: A Political History," Yale Law Journal 100, no. 5 (1991): 1515-44.
268. David Kairys, "Law and Politics," George Washington Law Review 52 (1984): 243-62;
269. Clare Dalton, "An Essay in the Deconstruction of Contract Doctrine," Yale Law Journal 95, no 5 (1985): 997-1114.
270. Morton Horwitz, The Transformation of American Law, 1780-1860 (Cambridge: Harvard University Press, 1977).
271. Duncan Kennedy, "Legal Education as Training for Hierarchy," in The Politics of Law, ed. David Kairys (New York: Basic Books, 1982; 2nd ed., 1990; 3d ed., 1998).
272. Duncan Kennedy, "First Year Law Teaching as Political Action," Law and Social Problems 1 (1980): 47.
273. Duncan Kennedy, "Rebels from Principle: Changing the Corporate Law Firm From Within," Harvard Law School Bulletin, Fall 1981, 39.
274. Calvin Trillin, "A Reporter at Large: Harvard Law," New Yorker, March 26, 1984, 53. George Gillespie confirms that the Trillin article was very important in spurring the interest of both himself and fellow board member Richard Furlaud.
275. Minutes, John M. Olin Board of Trustees Meeting, Olin Foundation Archives, May 22, 1984.
276. Minutes, John M. Olin Board of Trustees Meeting, Olin Foundation Archives, May 31, 1984.
277. Philip Areeda, "The Socratic Method," Harvard Law Review 109, no. 5 (1996): 911-22.
278. Minutes, John M. Olin Board of Trustees Meeting, Olin Foundation Archives, December 13, 1984.
279. Minutes, John M. Olin Board of Trustees Meeting, Olin Foundation Archives, January 17, 1985.
280. Arthur Schlesinger, The Vital Center: The Politics of Freedom (Boston: Houghton, Mifflin, 1949).
281. Peter Beinart, The Good Fight: Why Liberals-And Only Liberals-Can Win the War on Terror (New York: HarperCollins, 2006).
282. Robert Cooter, "What is Law and Economics? Why Did it Succeed," lecture, Vanderbilt University, Nashville, April 28, 2006.
283. Olin Grant Proposal Record (for Stanford Law School), Olin Foundation Archives, April 12, 2004. The Olin Foundation's terminal grant to Stanford's Law and Economics Program was $3 million.
284. Olin Grant Proposal Record (for Boalt Hall School of Law), Olin Foundation Archives, June 18, 1987.
285. Olin Grant Proposal Record (for Boalt Hall School of Law), Olin Foundation Archives, March 29, 1994.
286. Olin Grant Proposal Record (for Georgetown University), Olin Foundation Archives, December 21, 1993.
287. Olin Grant Proposal Record (for Columbia University School of Law), Olin Foundation Archives, March 29, 1994.
288. Olin Grant Proposal Record (for Boalt Hall School of Law), Olin Foundation Archives, September 15, 1998.
289. Daniel Klein and Andrew Western, "How Many Democrats per Republican at UC-Berkeley and Stanford? Voter Registration Data Across 23 Academic Departments," Academic Questions, 2004, http://www.ratio.se/pdf/wp/dk_aw_voter.pdf.
290. Richard Posner, "A Review of Steven Shavell's Foundations of Economic Analysis of Law," Journal of Economic Literature no. 2 (2006): 405-14.
291. Henry Manne, "An Intellectual History of the George Mason University School of Law," Law and Economics Center, GMU School of Law, 1993, www.law.gmu.edu/econ/history.html.
292. Admission to AALS is effectively mandatory for law schools that aspire to a national reputation. Affirmative action continues to be a major bone of contention between the GMU law school and its credentialing authorities. David Bernstein, "Affirmative Blackmail," Wall Street Journal, February 15, 2006.
293. Thomas Morgan, "Admission of George Mason to Membership in the Association of American Law Schools," Case Western Reserve Law Review 50, no. 2 (1999): 447-48.
294. Morgan, "Admission of George Mason," 450.
295. Olin Grant Proposal Record (request for LEC, federal judges workshop, faculty workshops, research projects and Supreme Court Economic Review), Olin Foundation Archives, December 21, 1993.
296. Gary Becker, The Economics of Discrimination, 2nd ed. (Chicago: University of Chicago Press, 1971).
297. Leiter's Law School Rankings, http://www.utexas.edu/law/faculty/bleiter/rankings02/faculty_quality.html;
298. http://www.utexas.edu/law/faculty/bleiter/rankings02/citations.html;
299. http://www.utexas.edu/law/faculty/bleiter/rankings02/books.html.
300. GMU is unranked in placing law teachers, is not in the top 25 in placing students in top law firms, and did not place any clerks on the Supreme Court until the 2008 term, http://www.leiterrankings.com/jobs/2006job_teaching.shtml;
301. http://www.calvin.edu/admin/csr/students/sullivan/law/;
302. http://www.leiterrankings.com/jobs/1991scotus_clerks.shtml.
303. Jeremy Rabkin, Judicial Compulsions (New York: Basic Books, 1989).
304. Center for Individual Rights, "A Brief Description of Program Activities," 1.
305. Michael Greve, "Environmentalism and the Rule of Law: Administrative Law and Movement Politics in West Germany and the United States," PhD diss., Cornell University Department of Government, 1987.
306. CIR, "A Brief Description."
307. Kevin McGuire, "Repeat Players in the Supreme Court: The Role of Experienced Lawyers in Litigation Success," Journal of Politics 57, no. 1 (1995): 187-96.
308. CIR, "A Brief Description," 3.
309. CIR, "A Brief Description," 4.
310. CIR, "A Brief Description," 10-11.
311. Paul Weaver's The Suicidal Corporation (New York: Simon and Schuster, 1988) is a powerful statement of how some thinkers of libertarian sympathies were recognizing this insight.
312. Center for Individual Rights, "Social Responsibility Project," n.d., probably late 1989.
313. Robert Kuttner, "Bleeding Heart Conservative: Jack Kemp, Caring Republican," New Republic, June 11, 1990.
314. "A partnership of Pepperdine University and the United States Departments of Justice and Education," Ronald Stephens, Executive Director, to Michael S. Greve, October 20, 1989.
315. Center for Individual Rights, "A Proposal and Request for Funding" (submitted to the John M. Olin Foundation), February 1990, 3.
316. Malcolm Feely and Edward Rubin, Judicial Policymaking and the Modern State (Cambridge: Cambridge University Press, 1998).
317. Timothy McGuire, "My Bout with Affirmative Action," Commentary 93 (April 1992): 50-52.
318. Jeffrey Henig, "Education Policy and the Politics of Privatization Since 1980," in Glenn and Teles, Conservatism and American Political Development.
319. Center for Individual Rights, "A Proposal and Request For Funding" (submitted to the John M. Olin Foundation), May 6, 1991, 3.
320. Center for Individual Rights Academic Freedom Defense Fund, "Report on Activities, 1992-1993 and Request for Continued Funding," (submitted to the John M. Olin Foundation), May 18, 1993, 2-3.
321. Steven Balch, President, NAS, to Michael Greve, May 12, 1993, 2.
322. Gary McDowell, "Affirmative Inaction: The Brock-Meese Standoff on Federal Racial Quotas," Policy Review 48 (Spring 1989): 32-37.
323. Institute for Justice, Grant Application Letter (recipient redacted) February 10, 1992,4.
324. Stuart Butler, Enterprise Zones: Greenlining the Inner Cities (New York: University Books, 1981);
325. Walter Williams, The State Against Blacks (New York: McGraw Hill, 1982);
326. Nina Easton, Gang of Five: Leader at the Center of the Conservative Crusade (New York: Simon and Schuster, 2000), 196.
327. Clint Bolick, Voucher Wars (Washington, D.C: Cato, 2003), 218, 219.
328. Michael McCann, Rights at Work (Chicago: University of Chicago Press, 1994).
329. O'Connor's dissent claimed starkly, "Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more." 454 U.S. 469 (2005).
330. This figure is taken from Institute for Justice, "Legislative Action Since Kelo," http://www.castlecoalition.org/pdf/publications/State-Summary-Publication.pdf.
331. David Cole, "Why Kelo is Not Good News for Local Planners and Developers," Georgia State University Law Review 22, no. 4 (2006): 803-56;
332. Timothy Sandefur, "The 'Backlash' So Far: Will Americans Get Meaningful Eminent Domain Reform," Michigan State Law Review 2006, http://ssrn.com/abstract=868539;
333. Ilya Somin, "Controlling the Grasping Hand: Economic Development Takings After Kelo," Supreme Court Economic Review 15 (2007), http://ssrn.com/abtract=874865.
334. Ilya Somin and Jonathan Adler, "The Green Costs of Kelo: Economic Development Takings and Environmental Protection," Washington University Law Review (forthcoming); and the symposium
335. "The Death of Poletown: The Future of Eminent Domain and Urban Development: After County of Wayne v. Hathcock," Michigan State Law Review 2004, no. 4.
336. Dana Berliner, Public Power, Private Gain: A Five-Year, State-by-State Report Examining the Abuse of Eminent Domain (Washington, D.C: Institute for Justice, 2003).
337. Institute for Justice, "Proposal: Strategic Research Program," October 2006.
338. Gerald Rosenberg, The Hollow Hope (Chicago: University of Chicago Press, 1993).
339. Chip Mellor, "The IJ Way," Carry the Torch, August 2000, http://www.ij.org/publications/torch/. IJ has since moved to new offices in Arlington, Virginia.
340. John Kramer, "A Vision to Communicate," Liberty and Law 5, no. 4 (1996), http://www.ij.org/publications/liberty/.
341. William Haltom and Michael McCann, Distorting the Law: Politics, Media and the Litigation Crisis (Chicago: University of Chicago Press, 2004).
342. Diana Schemo, "Group Vows to Monitor Academia's Responses," New York Times, June 25, 2003, A2.
343. Jack Balkin and Reva Siegel, "The American Civil Rights Tradition: Anti-Classification or Anti-Subordination?" Miami Law Review 58 (2003): 9-33.
344. Nathan Glazer, "Levin, Jeffries and the Fate of Academic Autonomy," Public Interest, Summer 1995, 14-40.
345. Chip Mellor, Foundation Funding Request (specific foundation redacted), February 3, 1992, 2-3.
346. http://www.ij.org/pdf_folder/financials/financial_snapshot.pdf;
347. http://www.cir-usa.org/articles/cir_ar_2004_new.pdf.
348. Clint Bolick, "Clinton's Quota Queens," Wall Street Journal, April 30, 1993, A12.
349. Clint Bolick, "Civil Rights Nominee, Quota Clone," Wall Street Journal, February 2, 1994;
350. Clint Bolick, "A Vote for Lee is a Vote For Preferences," Wall Street Journal, October 27, 1997.
351. Clint Bolick, "Coronation of a Quota King at Justice," Wall Street Journal, August 31,1994. 99.
352. Clint Bolick, The Affirmative Action Fraud (Washington, D.C: Cato Institute, 1996).
353. Greve, "Environmentalism and the Rule of Law."
354. Michael Klarman, "Brown, Lawrence (and Goodridge)," Michigan Law Review 104, no. 3 (2005): 431.
355. Harold Hotelling, "Stability in Competition," Economic Journal 39, no. 153 (1929): 41-57;
356. Anthony Downs, An Economic Theory of Democracy (New York: Harper and Row, 1957).
357. Reva Siegel has argued, "If the constitutional law that officials pronounce diverges too far from understandings to which American citizens subscribed, a mobilized citizenry knows how to hold judges and the elected officials who appoint them to account."
358. Reva Siegel, "Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the de facto ERA," California Law Review 94, no. 5 (2006): 1419. In Siegel's model, mobilization and countermobilization ultimately move constitutional law back to something like the equilibrium position of public values. This assumes, however, that the challenges for the first movers and the countermobilizers are symmetric: the key point of my argument is that they are not, and it is this asymmetry that produces constitutional regimes.
359. Paul Pierson, Politics in Time: History, Institutions and Social Analysis (Princeton: Princeton University Press, 2004).
360. Harold Demsetz, "Why Regulate Utilities?" Journal of Law and Economics 11, no. 1 (1968): 55-65.
361. Kathleen Thelen, "Historical Institutionalism in Comparative Politics," Annual Review of Political Science 2 (1999): 369-404.
362. Peter Hall and David Soskice, eds., Varieties of Capitalism: The Institutional Foundations of Comparative Advantage (Oxford: Oxford University Press, 2001);
363. Paul Pierson, Dismantling the Welfare State? (Cambridge: Cambridge University Press, 1994).
364. Teles and Prinz, "Politics of Rights Retraction"; Teles, Whose Welfare?, chapter 7.
365. Mancur Olson, "Distinguished Lecture on Economics in Government: Big Bills Left on the Sidewalk: Why Some Nations are Rich, and Others Poor," Journal of Economic Perspectives 10, no. 2 (1996): 3-24.
366. Adam Sheingate, "The Terrain of the Political Entrepreneur," in Formative Acts: Reckoning with Agency in American Politics, ed. Stephen Skowronek and Matthew Glassman (Philadelphia: University of Pennsylvania Press, 2007).
367. Samuel Lubell, The Future of American Politics (New York: Harper and Row, 1952).
368. Matt Bai, "Wiring the Giant Left-Wing Conspiracy," New York Times Magazine, July 25, 2004.
369. Ari Berman, "Big $$ for Progressive Politics," The Nation, October 16, 2006.
370. Peter Frumkin, Strategic Philanthropy: The Art and Science of Philanthropy (Chicago: University of Chicago Press, 2006).