Harvard and the Birth of Lawfare

The concept of “lawfare” is in the news constantly. The term describes a program, run mostly by political parties, that uses the courts to attack and tie up opponents—or to use the judicial system as its own government. It seems like a new practice in present-day politics, but its design goes back decades to one of our flagship universities and its law school.

When Harvard Law was first established in the 19th century, it was a trade school focused almost entirely on applied business. But something happened along the way: Harvard Law discovered social engineering. That is, law school could grow in prominence, influence, and wealth if its object became not just corporate clients with needs involving contracts, bills, insurance, and property, but the entire domain of human affairs. Lawyers could be the new engineers of societies.

Such ambition, or conceit, naturally finds itself pursuing, or cooperating with, political power and control, which relies on a warfare model of political conduct, which draws on the law school practice of adversarialism. The law school gradually became the “base camp” of a new political warfare model, and the development of legal methods, and especially a legal culture, was necessary to pursue lawfare in ways that could appear to be a regular use of the legal system.

[RELATED: How the Modern Law School Promotes Political Division and ‘Lawfare’]

Numerous books and papers have been written about various aspects of this problem. Most interesting of all, however, may come from an actual Harvard Law student, in his bellwether Wall Street Journal op-ed from August 6th, 1982, “Learning the Law at Harvard.” (See the image of the essay I captured below). In a succinct essay, Mr. Alexander Troy chronicled how Harvard Law evolved from a law school to a school of political activism and social ideology, a transformation that has continued to the present day, with its influence extending all the way up to the Supreme Court, and its enduring concentration of Harvard Law alumnae. Perhaps some of his unique insight came from his dual concentration in business.

Troy, Learning the Law at Harvard, Wall St. J., Aug. 6, 1982,

He especially focused on how a transformation of American law teaching standards occurred within Harvard’s curriculum, where its core focus shifted to litigation. Moreover, litigation was recast from a method of resolving disputes in the representation of a client to an enlarged role of representing “society” and using courts as a form of legislation. With this change, the entire doctrinal complex of separation, neutrality, consent, and restraint was reformulated into subversion, interests, authority, and license.

Harvard Law’s preoccupation with public-law litigation is exactly what lawfare is: the use of law to override the consensual processes of a democratic society. As Troy insightfully stated over 40 years ago, “At root, the attitude is anti-democratic, and if it is accepted by the students it is offered to, the nation can anticipate destructive conflict between its legislative and judicial institutions.”

As the public discovers nearly every week, another court ruling is made by appointed judges who assume they are in a contest with elected representatives over who is running the country. This goes beyond mere judicial excess or theories of judicial review or restraint; it represents a breakdown in our understanding of government.

The judiciary may not always be fully aware of the ramifications of their actions—judges aren’t generally so perceptive. However, they are smart enough to ingratiate themselves with politicians, believing that they are serving justice by aiding those political interests that they assume represent a higher social objective, which justifies enactment by judicial diktat. Economists sometimes refer to this as the “Nirvana Fallacy.”

Congress has the power to rein in such judges and courts. But its responsibility extends further and includes potentially impeaching judges who operate outside their oath-bound duties. Moreover, as judicial immunity may be revoked or lost through impeachment, additional charges may be brought against judges who knowingly participate in a coordinated undermining of a functional government.

That, unfortunately, is also the essence of almost all modern law school jurisprudence that seeks to emulate Harvard as a model: it rests not just on advocacy and adversarialism, but through a carelessness in thought, combined with a rejection of maturity and restraint, it has created a self-image of “revolutionology” as jurisprudence. Throughout history, such a worldview first requires an enemy created by ideological division and class envy, ultimately leading to lawlessness.

[RELATED: Yale, Harvard, UChicago: The Leftist Legal Trust Shredding the Constitution]

That may be the legacy of the Harvard Law School model of law as a vehicle for social justice. Indeed, it is the ironic basis of the entire “elite” law school category: law as a centralized, top-down judgment of private preferences, rather than a bottom-up, distributed power based on public consent.

The good news is that the elite category of law schools is unnecessary, except perhaps to the elite law schools themselves. Students will find the power of law instead in their own communities, families, businesses, and local governments, all across the country. Each of their own local community colleges and state schools already has the best credentials for learning what law is. And it isn’t that much: a basic set of private law principles for private citizens in control of a limited public government bound to a ratified Constitution.

Done right, much of the law as we know it today disappears, and the “elite” law school largely with it. That is where a true legal “revolution” may begin, by correcting a systematic mistake that has occurred in university law training, and by extension, its corrupting influence on our ability to manage self-governing societies and their states.

Image: “Langdell Hall, Harvard Law School” by Kenneth C. Zirkel on Wikimedia Commons