Advice for Prospective Libertarian Law Students

Update: See Are anti-IP patent attorneys hypocrites?, collecting various posts about this topic.

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I am from time to time asked by young libertarians considering, or in, law school, what fields are good to go into; how to choose the “best” or “most libertarian” law school, and so on. This has happened often enough that I’ve re-churned the advice many times now, and have ended up collecting a group of libertarian law students or lawyers that I include on the list. These include Pat Tinsley, J.H. Huebert, Brad Edmonds, Dick Clark, Greg Rome, Lee Iglody, Jeff Barr, and others. Below I’ve compiled, edited, and anonymized some of the typical types of questions I get and advice I or others have given out.

Other libertarian law types are welcome to email me suggestions or add them to the comments below. Also, I remember I started a Googlegroup  “Libertarian Law and Lawyers” a few years back which is moribund at present; anyone who wants to join for similar discussion, feel free. And also see my posts:

• The Most Libertarian Patent Work
• An Anti-Patent Patent Attorney? Oh my Gawd!
• Are anti-IP patent attorneys hypocrites?
• The Morality of Acquiring and Enforcing Patents;
• A collection of recent blogs about patent hypocrisy and “success” stories

Update: Related posts: The Most Libertarian Patent Work; Advice for Prospective Libertarian Law Students; Are anti-IP patent attorneys hypocrites?; An Anti-Patent Patent Attorney? Oh my Gawd!; The Morality of Acquiring and Enforcing Patents; A collection of recent blogs about patent hypocrisy and “success” stories.

[Update: see also New Publisher, Co-Editor for my Legal Treatise, and how I got started with legal publishing and Reading Suggestions for Prospective/New Law Students (Roman/Civil law focus) (March 3, 2021)]

Questions:

Sample:

On 9/7/07, X wrote:

Mr. Kinsella,

I am considering a career change to law.

Can an anarcho-capitalist make a difference in this field, or does he face a futile, emotionally damaging travail against the forces of the state? The more I learn about how “the world” operates, the more cynical and frightened–and angry–I become. I realize this is a loaded question, but I’m interested in your views.

What makes a great lawyer, in your opinion?

Being honest and professional and competent; knowing the law and working hard to represent his clients, and not trying to involve your personal hobbies and values like libertarianism.

That is why I think one’s anarcho-capitlalist activism ought not to be the reason to go to lawschool. That said, I have some law-student libertarian friends who are a bit more idealist than me. Want me to run this by them? They are on the LibertarianForum list–Brad Edmonds, Dick Clark, and others–want to join?

Does one come to understand “legalese” at last through repetition and study? It looks like mind-numbing stuff, but I can see its purpose: to be explicit and comprehensive so as to prevent ambiguity and loopholes. (Still, the Bill of Rights is relatively straightforward.)

Any other thoughts? I hope I’m not being too naive.

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Another recent one is excerpted here:

I am currently a senior at [] and am currently seeking a double BA in []. I am considering, but having trouble rationalizing my reasons for moving further in my education in law school. I am writing to you in what amounts to a crisis of faith in my beliefs regarding my very deep rooted anarcho-capitalist philosophies. I recently read a few articles you wrote for lewrockwell.com titled, What it means to be an anarcho-capitalist, another piece, How I became a Libertarian and several of your other articles on the site. They were all well written and very enjoyable, and my instinct pushed me into writing to you.

In high school, I became interested in economics, and the workings of and development of modern business concepts. My plan has always been to study business in undergrad school, and corporate law in graduate school. To make a long story short, I have spent the last 4 and a half years studying Business at a publicly funded school on a scholarship and have hated almost every one of my classes. (I liked my operations teacher, he was a libertarian that emigrated from India thirty years ago.) My passion these last years has been primarily in the realm of political and philosophical discourse. Like you at a younger age, my friends and family have been adamantly pushing me into going to law school.

Personally, I feel like I have learned nearly nothing studying business thus far. The experiences I have had in undergraduate school have been very, very disappointing. My professors do not allow for dissent on any analysis of how businesses work. The classes are meant to groom us for middle management, and little more. Every class pushes a bizarre group think process to class projects; everything is done in a group that must conform to expectations to the worship of diversity of race and sex. In the name of political correctness I have been called sexist, racist and privileged by more than one teacher, solely for the horror of being born where I was born, with the skin pigments my genetics ‘cursed’ me with The women’s study office is three times the size of the history office. Efficiency is seen as evil. Equality is everything. Profit is lamented as unnecessary. Groupthink is double-plus good. For the past 4 years, I spent my time in class trying not to cross the party line, partly because of how strongly I wanted to believe that a degree would enrich my abilities for the better. I have learned more working for my father in a month then I have in 4 studying Business. The coursework forced me to take classes like astronomy and geology, wasting my energies that I could have used studying higher levels of economics, the actual history of business theory, and how government, epistemology and metaphysics fits. In short, everything that I should have learned that I learned reading Mises’ Human Action and Rothbard’s Man, Economy and State.

This semester has been one of the worst. I dared challenge my statist professors in their own domain. Between the election (When Paul lost the primary, and the country embraced socialism) and one of my classes, I am on the verge of losing my spirit and turning into a Gultcher. In one of my classes, “Global Policy and Strategic Management” is a senior level seminar class that is meant to capstone the last 4 years of my education. When the bailout happened, I had to endure my professor’s lamentations about how “Capitalism has failed” and how “The greed of these people was caused by under regulations, (etc.) When I offered both qualitative and quantitative proof to the other wise, and tried to start a discussion about the real causes of the problems right now (central bank, fiat money), she claimed that lending had disappeared. Then I countered with the October report of the Minneapolis Fed saying otherwise. For weeks we battled during discussions. Eventually, she banned the class (me) from bringing in non-approved articles to her class. I am worried that I will go to graduate school for law and find only more of the same.

For the past few months, I have been battling with myself. I am currently preparing to take the LSAT this December and begin the process of finalizing a future with a decent law school. I am worried that I will face more of the same rabid state worship that I have endured for the last 4 years. I think part of the problem I have had was in going to a public university. But at the same time, I also don’t want to risk close to $32,000 for one year at a private school in [], just to be disappointed. I want to pursue law, but not at the expense of my principles. I am looking for some advice on how to deepen my education with out sacrificing my morality. Part of me wants to tough it out, and keep working toward my goal of a degree in law. Part of me wants to focus my energies on becoming as good a businessman as my father, and using our families’ business as a launching point into changing the system. Part of me wants to know who John Galt is. Are there steps I can take to find a law school with the qualities and openness to discourse that I desire? Does such a school even exist? In your own experiences, how hard and often were your libertarian views pushed? It’s not the challenge that gives me reservations, but rather my frugalness. I’d rather avoid wasting my time and efforts with something that may not work out for my goals.

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Advice/Suggestions/Exchanges:

One guy recently asked, “Could you recommend law schools that would be strong on libertarian principles?”

My answer was:  “I don’t think there are any–they have to teach actual law to be accredited, and actual law is not libertarian.”

I shared this with some libertarian lawyer friends, and some of them disagreed. Our exchange went roughly as follows–but the point is the prospective student has to make his own mind up, since even practicing libertarian lawyers have different takes on this:

One of my friends demurred:

“Law schools attract left-wing faculty.  Even religious ones in the South. Most faculty at my school are either silent on the topic, or are flaming left-wingers.  There are two real libertarians in a faculty of 30+; one fake one (left-lib); and one strong “conservative” (good on governmentt when it comes to taxation policy, but not good about agreeing that taxation is theft). And that is probably as good as it gets.”

Me: “The faculty are irrelevant. Law school is to teach the law. What has policy to do with it?”

Him:

“Absolutely, the faculty has everything to do with it.  They choose what to teach, and how to present it. They can present criminal procedure from the viewpoint of someone who hates the state, or someone who cheers for it.  It has everything to do with your quality of life in class, and with what and how you learn.  Have you not heard how the crits teach? … It appears you’re confusing what law schools ought to do with what they actually do.  You don’t think left-wing law professors use the
classroom as a forum to promote their ideas?”

Me:

“To be accredited they have to do an adequate job of teaching the positive law. As for promoting their ideas: yes–to some degree, and this is helped by the lefty-bias in the system. But a law school that tried to teach libertarian law would bedoomed from the start, and would not be law school. It would be meta-law school. Who would you hire to write your will? In any event, if you’re smart and sound enough to want to avoid that type of school, you’ll probably be immune to the indoctrination anyway.”

“‘To be accredited they have to do an adequate job of teaching the positive law.’

No, they don’t.  Just as one example, if you take the first-year real property course at Harvard or Yale, you very well might spend the entire semester talking about nothing but the Rule in Shelley’s Case.  My school had a recent Harvard or Yale grad come here and teach criminal law, or maybe crim pro; she spent a whole semester on one narrow topic, and was gone within a year.

Law schools are judged on the law schools the faculty went to; incoming students’ LSAT scores; student/teacher ratio; literal number of books in the library; and bar pass rate.  When the ABA visits, every teacher knows it, and they put on the right face for them.  Every law student nowadays who passes the bar takes that $2500 BAR/BRI course toget all the stuff he didn’t learn in law school.  Only the lower-tier schools worry about teaching the law and getting people through the bar exam.  I could go on…

Also, who’s suggesting that a law school just teach “libertarian law”?  Of course they teach the positive law, but they present it with a slant that varies depending upon the perspective they bring to it. For example, when Richard Epstein teaches torts, you don’t just learn torts, you learn all about his views on the law of torts.  That may be
self-indulgent of him, and may not do anything extra to prepare you for the practice of law, but that’s how it is.  Most professors — particularly as you move down the tiers of law schools — probably don’t go to the extreme that he does, but their own take is always part of what you’re getting.  Otherwise, you’d just be getting the
equivalent of a BarBri course.

So it would be better if theywere libertarians rather than leftists.

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From a file I was going to use for a draft of an article, “Advice to a Confused Anarchist,” drawn from some emails I’ve written–fyi. Not heavily revised here:

ADVICE TO A CONFUSED ANARCHO-CAPITALIST LAW STUDENT

Dear Mr. Kinsella:

[…] I am about to enter my YYY year at YYY Law School, but I am not sure I want to return to law school given my recent thoughts on the life of a young Austrian-following, (anarcho-) libertarian lawyer who thinks he has an obligation to try to promote a stateless society (or at least help lay the groundwork for it to come a reality sometime in the future) in his professional career, as opposed to merely being a nice theoretical hobby pursued in my leisure time.

[…]

I was thinking that perhaps I could do well and not do injustice by working in antitrust or in tax law (as long as I was not a government attorney) defending government-targeted clients against these terrible laws. Could this be justified? Is there another area of
the law that I could do some real good in pursuit of promoting this cause? If you could provide any advice of any sort along these lines, I would appreciate it.

Sincerely,

XXX

***

Dear XXX,

I will offer you a few of my thoughts, but please do not take them as gospel. Everyone has a different approach.

Yes, I am a hardcore libertarian and anarchist. My life is short and precious. I don’t think it should be wasted. I also think it should be lived for me. Altruism is fine, but not to an unhealthy extent. And finally, I believe in the principle of not blaming the victim. That is crucial.

Our current society is statist, and I fear it always will be. At least, I am certain it will be, throughout our lifetimes, at least to a significant extent. Given this, your rights and prosperity will be hampered due to the existence of the state. Which is due NOT to your own actions, but to those of most of your fellow man. They are the ones responsible for your predicament: they support, vote for, give aid and comfort to, and legitimize the state. As a libertarian, you are a victim of the state. Your democrat and republican neighbors are not. Why not? Because they consent to it. Think about it. I do NOT have a problem with most taxation–most of it affects liberals and republicans. I don’t care about them. I do not think it is a rights violatoin for a democrat to be thrown in jail for failing to pay taxes, for example. Poetic justice. Likewise, most companies, e.g., Microsoft, are run and owned by people who almost 99% of them would not deny the legitimacy, in general, of anti-trust laws. So do I feel sorry for them for being ensnared in its web? A little, but not very.

So. I am in favor of liberty, but it IS a hobby for me, or at least an interest. I personally want to *be* a libertarian; I want to understand liberty. And, yes, advocate it–but not under the delusion that I will have a big effect, or even under the delusion that I have an obligation to do so. To believe the latter is altruistic and worse, it is blaming the victim.

You are placed into a society where lots of choices are foreclosed. You cannot be a judge, without being an evil one (you have to put people in jail for selling pot). You can’t be a cop, without having to bust innocent people. Etc.

Enough. I am one who says that the innocent inmates of a tyrannical system do not have any obligation to add insult to injury. I do not think you or I have any obligation to engage in a futile quest, draining significant portions of our lives, in a futile attempt, to slightly, maybe, possibly increase liberty, for a temporary time, largely for the benefit of our fellow citizens who do not even deserve it.

I feel like enough bad things are done to me. I will be damned if I am going to further add additional, voluntary restraints on my life, to be restricted by rules that my socialist neighbors are not. For example, if I lose my job, and can get unemployment insurance, yes, I’ll do it, for several reasons. First, it is restitution, and I am more entitled to it than my fellow socialist neighbors. Better I get it than them. At least I am entitled to restitution, while they are not. Second, I am already harmed by extant laws. Why would I harm myself further, by putting myself at a competitive disadvantage with others who have no qualms whatsoever about playing by the libertarian rules.

Now I do not say there are not limits; it is hard to draw them. No, I would not be a guard in a concentration camp. But just to be a lawyer in normal society? I see no problem with it. You are not responsible for the laws that exist. Just like you are not responsible for the fact of public roads. Yet I am sure you use them. What is the difference?

And there are plenty of legal fields you can feel okay about. Like commercial law. Etc. I myself have come to terms with it, though I admit maybe I am just rationalizing; or maybe I am simply not as principled or courageous as you. But for example I concluded patents are invalid. Yet I am a patent attorney. I file and apply for and obtain patents for my clients (now, my employer). Most of them issue and sit on a shelf. If I were a litigator, I would sometimes defend, and sometimes sue, others for patent infringement. I might feel a bit guilty about suing someone for it–but first, you can avoid such things, if you want; and second, what’s wrong with suing someone for patnet infringment, if they themselves accept the legitimacy of the patent system? But in actuality, in my case, our portfolio of patents is primarily defensive: GIVEN the existnece of patents, we might be sued; so we have a portfolio to use defensively, in a cross-claim, if possible and necessary.

But imagine you are at a big law firm, and you do a “pure” type of law, like contract only. Yet you are making money *from* the firm’s other “impure” activities. At one of my firms, they got a huge judgement in the tobacco litigation against a state. This filtered down to the partners (of which I was one). Should I refuse the mone? How much? It’s fungible. BUt if i refuse it, more goes to my fellow, more-socialist attorneys. Why is that preferable? In any event, it is unavoidable to share in some of the loot. Driving on the roads. Etc. But remember, don’t blame the vicitm! You are NOT responsible for this.

My advice is what I follow: just have a good career. Do not worry about things you are not responsible for. Stay as active in the movement as you want, and enjoy, but do not believe you have an obligation to save everyone and do not be deluded that you will. Live your life. Don’t waste it. Don’t add further unnecessary burdens to your life, on top of the others already heaped upon you by socialists. Screw them. Try to avoid getting involved with really nasty things, like the CIA or drug enforcmenet or IRS etc., but other than that, live your life and try to be as mainstream successful as you can. (Actually, I could see working as a young lawyer for the IRS for a while, to learn it inside and out, then jumping ship to represent clients to defend them against the IRS. I would have no qualms with that.)

Good luck.

Stephan

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Advice from a law student friend, sent to a prospective law student at my request:

Dear X:

Let me tell you how I came to law school and what’s happened since I’ve been here; maybe I’ll address some of your fears/questions indirectly. I grew up in a suburb of [southern city]. My parents taught me the joys of small government and exposed me to Ayn Rand. They don’t describe themselves as such, but they’re basically paleoconservatives. I attended undergrad at Loyola as a []/political science double major. I was the only libertarian in the poli sci dept, and spent a lot of time getting verbally jumped in class. Loyola as a whole is also tremendously liberal; “social justice” is one of their core values. In my liberal arts classes, my treatment was similar to yours. I was definitely outnumbered by nanny-statists and bleeding hearts and got shouted down more than once. At some point, I stopped bothering and decided to leave them to the state they deserved.

One semester, however, I went to buy my textbooks and saw that there was a class teaching Atlas Shrugged as an optional text. I bought the books and signed up for the class immediately. That’s how I met Walter Block. I think the class was Law and Economics, and the required text was Walter’s Defening the Undefendable. Loyola’s econ department, it turned out, was significantly Austrian. I didn’t know what that meant at the time, but I was soon trying to figure out how I could replace my poli sci major with econ. It was too late to get an econ degree by that point, but I took what classes I could. Walter is an amazing teacher, and he brought me into the fold of Austrian economics and principled Libertarianism.

I graduated in the spring of 2006 and began [] Law School in the fall. I will tell you this: if you decide to attend law school, you will spend a considerable amount of time being angry. You will be upset by stupid, unprincipled decisions. You will hate every single government intrusion. You’ll curse judges’ names for failing to protect liberty. On the other hand, you’ll occasionally cheer. Sadly, you won’t cheer with nearly the frequency you’ll boo. You will almost certainly be vastly outnumbered in every single class by people with whom you virulently disagree. If you champion causes like liberty and free trade and the right for private parties to discriminate against anyone for any reason, you will be probably labeled a crank or worse. Principled thinkers of any stripe are incredibly rare, let alone principled libertarians or anarchists. Nearly all of your classmates – both liberal and conservative – will worship the state. Law school isn’t really any different than anyplace else; you will be different.

That being said, you will probably meet some really great people who, even if you disagree with them ideologically, are genuinely good and want to do good things. You’ll probably be closer to some of the friends you make in law school than the vast majority of friends you enter with. Law school is a pain in the ass. At times, it’s boring; at others, it’s grueling. It’s a lot of work, even if you do as little as possible to pass. It’s pretty much the perfect place for bonding through shared misery, and, I expect, when it’s over I’ll even miss it. However, right now I have the right, shared by all students, to bitch constantly.

Despite your uncommon views, there is absolutely no reason to sacrifice your principles. More likely than not, you’ll be graded anonymously. As a result, you can air your views and values in class without fear of reprisal on the exam (which will almost certainly be your only grade for the entire semester). However, if you know the prof disagrees with your views and there is a place on the exam where you can rub his nose in it, you’d be a fool to take the opportunity. Keep your head down, write the answer the prof wants, and think what you want. If you want to compete for top clerkships/inernships/jobs, your grades are important. It’s not worth throwing it away over trying to show your prof just how wrong his views are; he won’t change his mind, and you will take academic and professional the hit if the prof is petty, which he probably is because he is a law professor and filled with self-loathing.

I have dealt with the discrepancy between my views and the views of the prof and most of the class by laughing at them internally and not challenging them. Honestly, I don’t care what they think on political/philosophical issues. I have no interest in saving them from themselves, and fighting with them isn’t nearly as entertaining as it was before I got old and grumpy.

I will be completely honest; I take home a state check twice a month [from a government job]. From my libertarian friends, I’ve gotten responses ranging from indignation for taking dirty money and supporting the state to gratefulness that there was a libertarian sitting in [that position] minimizing the damage the state causes as best he can.

I approach the subject in the latter vein, much like Stephan approaches his patent practice. For the foreseeable future, state courts will exist. Those courts will have clerks. The judges in those courts will often be bound to behave in a way contrary to freedom. However, there is a continuum of action available ranging from draconian to benign. By being a clerk – a state actor – I can and have effectively pushed my court’s behavior closer to the benign side of the spectrum. Overall, it’s a better condition than if I hadn’t accepted the job. There are people who would classify this thought process as facile rationalization. That’s fine; I’ll take my lumps and keep on doing what I think is the best job I can. I’m advancing liberty more than if I simply sat around complaining about the state.

I plan on entering private practice after passing the bar. I hope to do a lot of small property/contract law, family/estate law, and very minor criminal defense. Those practice areas are normally pretty neutral, as far as liberty goes. Really, what’s cleaner than defending property rights and the sanctity of contract? Since it’s a small/solo firm, I don’t really have to worry about ill-gotten gains creeping into my income streams from less principled partners. Finally, I hope to be judge some day.

Stephan’s right; you can’t be a judge without doing some evil. On the other hand, my earlier argument applies here a fortiori. It’s much better that I do it while trying to restrain the state as much as possible than a state-worshiper do it for the greater glory of the establishment. I might be damned but I’m willing to take that risk.

Well, this has gotten overwhelmingly long, and I apologize for that. I hope you can use my experience to help you decide where to go from here. It’s certainly possible to go to law school and remain a libertarian. The state is strong and will probably always be with us, but the sweetest victories I’ve ever taken part in are those where the state’s laws were used against it. Pretty much the only place you’ll learn to do that is in law school. If nothing else, the training is great for self defense.

Cheers,
Y

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Advice from another friend:

This is my advice, based on my having been to law school (and having looked for a job) and having been in grad school in [other fields]:

1. Get into the best law school you can, period. You’re already libertarian, and the nature of your school won’t affect that. It’s more important that you get a job than that your political development is made more efficient by combining it with your law school coursework. If you can get into Harvard or Yale, do it. If you want a libertarian education, get it on your own time. More important is having a high-paying job; or else one that permits you to exert some influence in moving others toward libertarianism. The only such thing I can think of is law school teaching, and law schools want professors only from the top institutions.

2. There are a precious few libertarian-leaning programs in other disciplines; probably none in law. Law schools attract and prefer leftist teachers, and since they’re teaching the actual law, libertarian theory is not a priority. That said, IF among the best schools you (a) can apply to with a reasonable expectation of getting in, or (b) have been accepted to, they are otherwise identical as to reputation, then just look over the faculty, and pick the one that has the more or better ones you want vis-a-vis your libertarian leanings.

Really, the bottom line: pick the best law school you can get into, period; pursue libertarianism with your whole heart outside of that. One last piece of advice: nobody in law school — faculty, admin, fellow students — really needs to know you’re libertarian or ancap, unless you just insist on convincing them you’re a loon and you want to limit your job options.

End the stuff you’re to cut and paste to future supplicants. Btw, I don’t think I’ve hurt myself by being libertarian; I hurt myself by getting too many other degrees first, and by being too old for a [certain southern city]. Not a problem, I’ll do fine, and this stuff doesn’t relate to advice to give others — few will have my special impediments.

Update: From a colleague teaching at Mises U:

On another note: I’m at Mises U and a kid said he loves Austrian econ (of course) and is in law school. He wanted suggestions on what to do in law school that goes along with his love of Austrian. I asked what kind of law who wanted to go into. He said definitely not corporate law, but he thought something like the prevention of white collar crime / fraud. I don’t think he necessarily meant as a government regulator. Any ideas?

My comments:

It’s a vast area. Tell him he’s free to contact me to discuss it.

Meantime maybe some of these posts would be of interest to him —