Stephen Presser on Law Professors Shaping American Law

by Chris Walker — Monday, July 24, 2017@chris_j_walker

presserLast week I had the opportunity to debate/discuss the modern administrative state with Stephen Presser at an event hosted by the Federalist Society’s Austin, Texas, Lawyers’ Chapter. In preparation for our discussion, I read Professor Presser’s fascinating new book Law Professors: Three Centuries of Shaping American Law.

Although the book is not focused on administrative law, I thought I’d do a quick post here recommending the book to readers of the blog. Here’s a summary of the book from the Amazon description:

There is no nation in which the teachers of law play a more prominent role than in the United States. In this unique volume Stephen Presser, a law professor for four decades, explains how his colleagues have both furthered and frustrated the American ideals that ours is a government of laws not men, and that our legal system ought to promote justice for all. In a dazzling review of three centuries of teaching about American law, from Blackstone to Barack Obama, Presser shows how these extraordinary men and women shaped not only our law, but also our politics and culture.

What I really enjoyed about the book is that it tells the story of the development of American law through a couple dozen short chapters on various law professors from Blackstone and Holmes through Scalia and Sunstein. It’s a long book but a quick read, and it provides a great introduction to the various movements in the American legal academy. For administrative law folks, the chapter on Roscoe Pound is particularly interesting. To be sure, Professor Presser is telling the story through a critical and conservative lens, and I think he’s too hard on some scholars and not hard enough on others. But the book provides a great overview of and introduction to American legal thought for aspiring academics, junior legal scholars who don’t have the big picture yet (like me), and law nerds more generally.

If you need more information before deciding whether to read the book, check out the various reviews to date. Here’s a snippet from a review at the Library of Law and Liberty:

Law Professors is an exceptionally fine book—written in a sprightly style, well-illustrated, logically organized, and containing (as befits a scholarly tome) a detailed index. Displaying an easy but encyclopedic mastery of legal history, Presser covers American law from its English common law roots to the present, using as his pedagogical tool chapter-length sketches of influential legal figures (all of whom served at some point as law professors). He chronologically profiles in this manner 20 individuals, from Sir William Blackstone to former President Barack Obama. . . .

In a format that some readers will recognize from West’s “Nutshell” series, Presser dispenses with the jargon and pretense so typical of law review articles, explaining with elegant simplicity such concepts natural law, common law, civil law, formalism, legal realism, “critical legal studies,” “law and economics,” originalism, and critical race theory. Some of the figures he profiles to represent the different schools of thought are known to many readers, such as Oliver Wendell Holmes, Jr., Roscoe Pound (including his “sociological jurisprudence”), Karl Llewellyn, Herbert Wechsler, Ronald Dworkin, Richard Posner, Cass Sunstein, and Antonin Scalia. Others are influential but not as well-known, such as Mary Ann Glendon, Paul Carrington, and Patricia Williams. Law Professors is thorough, mentioning in text or footnotes several figures who have been largely lost to history. (I was pleased to see Leon Green mentioned, although Robert Bork and Randy Barnett unaccountably get short shrift.)

And here in The Economist:

If the [judicial confirmation] fight has become more heated, it is because the authority of the judiciary in America, notably its ability “to legislate”—to expand the reach of law and find new, unstated (and possibly unintended) rights—has been a pivotal feature of politics since the 1950s. “Law Professors: Three Centuries of Shaping American Law”, a well-timed book by Stephen Presser, a professor at Northwestern University, traces how this emerged. . . .

The natural audience for this book is academics, members of the bar and law students. For these last in particular, it may become essential reading. Law professors like putting their students through the hoops by asking them bewildering questions; Mr Presser’s book does a good job of distilling what is actually being taught. . . .

And here from The University Bookman:

Presser admittedly doesn’t like Holmes, but he is polite about it. There’s a charming sense of collegiality in his assessments of his contemporaries as well. He boasts of his own traditionalism without hesitating to call Duncan Kennedy and Catharine MacKinnon “brilliant.” He disagrees with his opponents without denigrating their intelligence and expresses gratitude to faculty whose politics differ radically from his own. He describes a variety of disciplinary schools, including critical race theory, which don’t appeal to him. And he gives some unjustly neglected thinkers (e.g., Mary Ann Glendon) the attention they rightly deserve while some overrated thinkers (e.g., Cass Sunstein) receive the attention they relish.

President Obama is held up as the quintessential modern law professor, the type of haughty pedagogue responsible for the demise of the rule of law and the widespread disregard for constitutional mandates and restrictions. Yet law professors as a class weren’t always bad; in fact, they once, according to Presser, contributed marvelously to the moral, spiritual, and religious life of America. Presser hopes for a return to that era. He wishes to restore a proper understanding of natural law and the common-law tradition. His conclusion takes a tendentious turn that reveals his abiding conservatism. Those who agree with him will finish reading this book on a high note. His political adversaries, however, may question whether they missed some latent political message in earlier chapters.

But isn’t that the nature of love letters—to mean more than they say and say more than they mean? Presser’s love letter to law teaching is enjoyable to read and draws attention to the far-reaching consequences of mundane classroom instruction. He’s a trustworthy voice in these loud and rowdy times.

 

About Chris Walker

Christopher Walker is a law professor at The Ohio State University Moritz College of Law. Prior to joining the law faculty, Professor Walker clerked for Justice Anthony Kennedy of the U.S. Supreme Court and worked on the Civil Appellate Staff at the U.S. Department of Justice. His publications have appeared in the Michigan Law Review, Minnesota Law Review, Stanford Law Review, and University of Pennsylvania Law Review, among others. Outside the law school, he serves as one of forty Public Members of the Administrative Conference of the United States and on the Governing Council for the American Bar Association’s Section on Administrative Law and Regulatory Practice. He blogs regularly at the Yale Journal on Regulation.

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