Most significant substantive legal disputes you all confront in law school are "resolved" at least as much by reference to ideological predispositions as any sort of logic internal to legal analysis. We will begin the seminar by discussing some competing views about what key ideological messages are conveyed at law school. But the bulk of the course is devoted to a series of questions that arise for those of us who believe that ideology is important. We examine in modest detail what I would characterize as Right-wing orthodoxy in the law schools, an orthodoxy that took shape in the early days of the Federalist Society. Its key procedural features were allegiance to originalism and textualism and a preference for rules over standards, its key substantive features full-throated or "soft" economic libertarianism and hostility to legal rules that attended to status and identity. It seems implausible from my vantage, though, that this orthodox position can remain so dominant: the entire political Right of the legal academy cannot possibly cling to unadulterated or even slightly modified Reaganite Classical small-l liberalism (domestically) and neoconservatism (internationally) when Reaganism has been largely obliterated as a political force in the Republican Party. That is true even though one must recognize that much of the "policy substance" driving whatever conventional policy agenda MAGA -- or at least much of the Project 2025 branch thereof -- brings to the table is familiar Reaganite resistance to redistribution and regulation. Thus, we will focus more carefully on Right-wing heterodoxy: resistance to these conventional positions from commentators who reject in significant part the Classical small-liberal Reaganite tenets, typically in favor of a more activist, illiberal, significantly theocratic state; the ethno-nationalism associated with the MAGA movement; and/or increased sympathy or support for facilitating or even endorsing what many would label authoritarian rule. We also carefully study 21st century progressive orthodoxy (with its strong focus on countering identity-based subordination) and progressive heterodoxy. We will study heterodoxy and orthodoxy in a number of contexts. We will look, for instance, both at how illiberal academics on the Right have rejected "old FedSoc" race-blindness and, even more carefully, at how and why a number of heterodox political progressives have shunned familiar progressive claims about the centrality of diversity, implicit bias, and the importance of countering individual acts of discrimination; questioned significant claims for disability accommodation and "universal design;" worried about aspects of the regime regulating sexual harassment; and shown less hostility to accommodation of religious objectors to antidiscrimination law. We will examine with some care how those on the Left and the Right have shifted their views about how (and why) power should be allocated between legislatures, agencies (especially historically independent ones), and the President attending with special care to the question of whether certain forms of "presidentialism" facilitate authoritarianism. You will each be expected to prepare two reaction papers (of roughly five to eight pages) over the course of the term, responding to some or all of the readings you have read for a session. LAW 60% of your grade will be based on these papers. You will also be expected to prepare (on four occasions) three or four questions or comments on the session's readings (these can be as short as a few lines or as long as a page). These must be turned in at the very latest by noon before class: I hope I will be able to make some use of these questions and comments in figuring out what aspects of the reading might be most profitable to emphasize during the afternoon's class. LAW 20% of your grade will be based on these four "mini-papers." Finally, LAW 20% of your grade will be based on attendance and participation.
2 units · Law Honors/Pass/Restrd Cr/Fail
Most significant substantive legal disputes you all confront in law school are "resolved" at least as much by reference to ideological predispositions as any sort of logic internal to legal analysis. We will begin the seminar by discussing some competing views about what key ideological messages are conveyed at law school. But the bulk of the course is devoted to a series of questions that arise for those of us who believe that ideology is important. We examine in modest detail what I would characterize as Right-wing orthodoxy in the law schools, an orthodoxy that took shape in the early days of the Federalist Society. Its key procedural features were allegiance to originalism and textualism and a preference for rules over standards, its key substantive features full-throated or "soft" economic libertarianism and hostility to legal rules that attended to status and identity. It seems implausible from my vantage, though, that this orthodox position can remain so dominant: the entire political Right of the legal academy cannot possibly cling to unadulterated or even slightly modified Reaganite Classical small-l liberalism (domestically) and neoconservatism (internationally) when Reaganism has been largely obliterated as a political force in the Republican Party. That is true even though one must recognize that much of the "policy substance" driving whatever conventional policy agenda MAGA -- or at least much of the Project 2025 branch thereof -- brings to the table is familiar Reaganite resistance to redistribution and regulation. Thus, we will focus more carefully on Right-wing heterodoxy: resistance to these conventional positions from commentators who reject in significant part the Classical small-liberal Reaganite tenets, typically in favor of a more activist, illiberal, significantly theocratic state; the ethno-nationalism associated with the MAGA movement; and/or increased sympathy or support for facilitating or even endorsing what many would label authoritarian rule. We also carefully study 21st century progressive orthodoxy (with its strong focus on countering identity-based subordination) and progressive heterodoxy. We will study heterodoxy and orthodoxy in a number of contexts. We will look, for instance, both at how illiberal academics on the Right have rejected "old FedSoc" race-blindness and, even more carefully, at how and why a number of heterodox political progressives have shunned familiar progressive claims about the centrality of diversity, implicit bias, and the importance of countering individual acts of discrimination; questioned significant claims for disability accommodation and "universal design;" worried about aspects of the regime regulating sexual harassment; and shown less hostility to accommodation of religious objectors to antidiscrimination law. We will examine with some care how those on the Left and the Right have shifted their views about how (and why) power should be allocated between legislatures, agencies (especially historically independent ones), and the President attending with special care to the question of whether certain forms of "presidentialism" facilitate authoritarianism. You will each be expected to prepare two reaction papers (of roughly five to eight pages) over the course of the term, responding to some or all of the readings you have read for a session. 60% of your grade will be based on these papers. You will also be expected to prepare (on four occasions) three or four questions or comments on the session's readings (these can be as short as a few lines or as long as a page). These must be turned in at the very latest by noon before class: I hope I will be able to make some use of these questions and comments in figuring out what aspects of the reading might be most profitable to emphasize during the afternoon's class. 20% of your grade will be based on these four "mini-papers." Finally, 20% of your grade will be based on attendance and participation.
Offered in Winter 2027 at Stanford University.