#ReleaseTheMemo: CLS, the Rule of Law, and the Nunes Memo

The Critical Legal Studies (CLS) movement was born in the American legal academy in the 70's and reached the pinnacle of its importance in the mid-to-late 80's when it turned the Harvard Law School (the de facto capital of the movement) into "the Beirut of legal education." (I actually benefited from the mess CLS made of Harvard because at least two of my best professors at Chicago were refugees from Harvard, at least temporarily seeking shelter from the CLS movement there.) Adherents of CLS (Crits) are hostile to the traditional western concept of the rule of law. In fact, they think there is no such thing. Law is mere politics, they say. Critical Legal Scholars seek to destroy (they say "deconstruct") law from the inside. This led the Dean of Duke Law School to question in 1984 how those who do not believe in law can teach it. Good question.

At the law school where I teach, we tell our students about CLS (even though the movement is much less prominent today than it was about thirty years ago), and I'm glad we do because it has had a profound effect on our country. One of the CLS writings we have our students read is a piece by Paul Butler on jury nullification. Butler argued that "the idea of 'the rule of law' is more mythological than real," and that his audience "should embrace the anti-democratic nature of jury nullification because it provides them with the power to determine justice in a way that majority rule does not," and that they should "serve a higher calling than law: justice." Butler learned this philosophy at Harvard Law School, where he graduated in 1986, near the apex of the CLS movement. 

What does all of this have to do with America today you ask? Guess who else graduated from Harvard just five years after Paul Butler? That's right, President Barack Obama, and I'll bet dollars to donuts that there's a 70% overlap between Butler's and Obama's course selection, surely dominated by Crits. (I would even guess that the real reason President Obama always refused to release his transcripts wasn't any of the reasons imagined by online conspiracy theorists. I'll bet he refused to release his transcripts because he would be embarrassed by his course selection at Harvard.) 

The main reason I would bet that President Obama studied at the feet of Crits is that the Obama administration was CLS philosophy implemented on a grand scale. (The proof of the pudding is in the eating, as they say.) We saw it over and over. President Obama refused to enforce laws that he did not like, and he acted in the absence of law when he thought it was desirable to do so. And why not? He was taught in law school that there is no such thing as law. What passes for law is merely politics. Law is what you can get away with politically, and that's how President Obama ran his administration, especially in his second term, when he had more flexibility.  

But President Obama is so 2016, you might say. What does that have to do with America today? I'll tell you. Parts of our federal government are supposed to be political. The Senate and the House of Representatives are prime examples. Politics is the rule there, and that is the way it is supposed to be. But other parts of our government are supposed to be legal, not political. The Justice Department, the IRS, and the Federal Courts are supposed to be such non-political examples. Those branches and limbs of the federal government are supposed to be bound by the laws created by the political parts of government, but their work is supposed to be free of politics. This is part of the reason that President George W. Bush's attorney general, Alberto Gonzales, was pressured to resign for allegedly improperly firing US Attorneys for political reasons. The Justice Department is not supposed to be political.

But what happens when the President himself, who appoints all the high-ranking officials in these non-political limbs of the federal government, has been taught and believes that there is no distinction between law and politics? Then you get the Obama administration. The Justice Department, IRS, FBI, and even the Federal Courts become law-free zones. Politics is everything. The attorney general does not enforce the law, she protects her preferred political party. The IRS persecutes political opponents. Lifetime appointees to the federal bench issue transparently political decisions with no basis in law. This is Obama's lasting legacy, the eroding of the rule of law within the institutions of our federal government.

Many of President Obama's legislative and executive legacies likely will be quickly dismantled by President Trump, but Obama's hundreds, maybe even thousands, of appointments and hires have revolutionized the Justice Department, the judiciary, and, apparently, the FBI. While many, maybe even most, of President Obama's appointees probably are not Crits, if there are even a couple hundred high-ranking Justice Department officials and/or lifetime federal judicial appointees who are not committed to the rule of law, we could be in for decades of lawlessness. We've never seen anything like this before. Not from Bush, not even from Clinton. A liberal employee of the federal government can still be fundamentally committed to the rule of law, but those who share President Obama's philosophy threaten law itself. That lasting influence of the Obama administration must be rooted out, not covered up. #ReleaseTheMemo