Ideological Orthodoxy and Heterodoxy

Catalog description

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…