The last two posts (here and here) described the pivotal role that The Calculus of Consent, a book by James Buchanan and Gordon Tullock, played in Henry Manne’s development of law and economics programs at US law schools. (Read more about law and economics programs at US law schools here). The last post explained that Dwight R. Lee described The Calculus of Consent as offering a means of “protecting capitalism from government.” However, Nancy MacLean flipped that description on its head, stating that The Calculus of Consent “might more aptly be depicted as protecting capitalism from democracy.”
The last post also explains how, in her book Democracy in Chains, MacLean argues that Buchanan and his colleagues were motivated by racial prejudice, and, in particular were motivated by opposition to the Supreme Court’s 1954 decision in Brown v Board of Education to oppose as a matter of urgency the “problems of equalitarianism,” including “the tax structure,” “income redistribution” and “the welfare state.”
Finally, the last post described how certain commentators have rejected MacLean’s depiction of Buchanan’s motives. Most notably, Henry Farrell and Steve Teles assert that Buchanan’s role in the development of the conservative intellectual movement was too small to be significant (an assertion with which Henry Manne would certainly disagree) and that, even if Buchanan’s role had been significant, there is no proof that he was motivated by racism.
Let’s say that Farrell and Teles are right. In that case, where can we turn to know who did play a significant role and to better understand what were their motivations?
What if we turn to Teles’s own book: The Rise of the Conservative Legal Movement: The Battle for Control of the Law. His book, published in 2008 (nine years before MacLean’s), tells the story of how conservatives sought to challenge what they perceived to be the “liberal domination” of law and of American legal institutions. They did this, the book explains, not through “traditional electoral politics” but through law schools, professional networks, public interest groups and the judiciary. Teles describes this phenomenon as the “conservative legal movement” and he focuses his narration on three principal developments: the development of conservative public interest law, the establishment and growth of the Federalist Society, and the creation and advancement of law and economics programs at US law schools.
As regards law and economics programs, Teles begins with the University of Chicago, whose law and economics program he describes as the “mother ship,” and the “spiritual center of the movement,” especially for those who see it as a critique of “government activism” and a “method for studying law.”
But for all the importance of Chicago, the bulk of Teles’s analysis is focused on the “myriad projects” of Henry Manne. For Teles, Manne’s role in the development of law and economic programs around the country cannot be underestimated: Manne was the movement’s first “organizational entrepreneur” and he, along with Richard Posner of Chicago, “evangelized the gentiles.” According to Teles, while there were “larger forces” encouraging law and economics, “Manne’s activities are essential in explaining the rapidity and depth of its diffusion in the 1970s and 1980s.”
Teles explains that the “conservative legal movement” was born out of frustration with the Warren Court, and in particular with the decisions of Brown v. Board of Education, Baker v. Carr, and Roe v. Wade. According to Teles, the “liberal legal network” sought to entrench the work of the Warren Court by arguing that Brown demonstrated that a muscular role for the judiciary was “indispensable to the cause of equality and justice.” Further, the “hegemonic” liberal (as opposed to conservative) voices in law schools sought to ennoble the legal profession, “making it a tool for the pursuit of justice rather than a mere lubricator of commerce.” Law schools (again, under the “hegemonic” power of “liberals”) sought to create a “heroic” conception of law and a heroic role for courts, which would “not incidentally” result in an elevated status for law professors. For Teles, these “legal liberals” had an unfair advantage:
An egalitarian understanding of the Constitution, with civil rights at its core, was for them part and parcel of a new legal professionalism… Sanctifying legal liberals’ aspirations for the law was the powerful moral status of “rights” produced by the civil rights struggle and the image of the Warren Court that was simultaneously legally orthodox and substantively humane, whose actions rested on genuine authority as well as decent and civilized instincts. At the same time, the reputation of the institutions that they sought to reform, such as southern state governments, urban machines, and big business, was at a low ebb, and the ability of those institutions to compete in the cultural and ideological marketplace acutely limited. The place of legal liberals at the pinnacle of an increasingly well-resourced and influential legal academy gave their framing of legal politics real legitimating power, helping to preserve the role of legal liberalism in the legal profession even as its electoral grip was slipping away. The power of these ideas, which claimed to be above normal politics, would infuriate, frustrate and ultimately mobilize conservatives in the years to come.
Look at that quote carefully. Its placement of the word “rights” in quotes indicates that there is some idea in that sentence that Teles does not agree with. Is it that “rights” have moral status? Or is it that what the civil rights struggle produced was not “rights?” It is hard to say with what exactly he is disagreeing. But his mockery of the “civil rights struggle” is crystal clear.
Let’s look at the quote again. It says that the power of “these” ideas is what infuriated, frustrated and ultimately mobilized conservatives. To which ideas is Teles referring? Is it ideas of an “egalitarian understanding of the Constitution, with civil rights at its core?” Is it ideas of the “moral status” of “rights?” Is it ideas of the Warren Court that are “substantively humane,” and “whose actions rested on genuine authority as well as decent and civilized instincts?” Is it perhaps all of those ideas? Again, it is hard to say to what exactly Teles is referring. But his affirmation that the conservative legal movement was born out of opposition to civil rights and to the civil rights movement is crystal clear. And, as Teles himself explains, the law and economics programs currently in place at a number of US law schools are a crucial element in that movement.
 Dwight R. Lee, “The Calculus of Consent and the Constitution of Capitalism,” Cato Journal 7 (1987): 332, http://heinonline.org/HOL/LandingPage?handle=hein.journals/catoj7&div=32&id=&page=.
 MacLean, Democracy in Chains, 81.
 Nancy MacLean, Democracy in Chains: The Deep History of the Radical Right’s Stealth Plan for America (London: Scribe, 2017).
 Ibid., 46.
 Manne described Buchanan as “one of the great towering figures of intellect in the world in the 20th and early 21st century.” “Dr James Buchanan’s Contributions to Social Philosophy and Political Economy,” Mercatus Center, published November 14, 2014, 2:05, https://www.youtube.com/watch?v=NeDf7Xhk9WY&t=3494s.
 Steven M. Teles, The Rise of the Conservative Legal Movement: The Battle for Control of the Law (Princeton, New Jersey: Princeton University Press, 2008).
 Ibid., back cover.
 Ibid., 5.
 Ibid., 58-89, 220-64.
 Ibid., 135-180.
 Ibid., 90-134, 181-219.
 Ibid., 91-101.
 Ibid., 91.
 Ibid., 90.
 Ibid., 101-34.
 Ibid., 101.
 Ibid., 44-46.
 Ibid., 22.
 Ibid., 45.
 Ibid., 45-46.