Matt Yglesias Says the Quiet Part Loud
No, Matt, there is a such a thing as legal expertise, and law is not the same as politics
When I wrote my piece about how legal journalism seems to be premised on the idea that anyone who reads a few court cases is a legal expert and actual experts need not be consulted, I never imagined that a famous journalist would actually explicitly endorse the theory and say that journalists were in fact right about this. But in today’s edition of his Substack newsletter (which, by the way, is a very good newsletter you should subscribe to), Matthew Yglesias does just that.
Yglesias’ basic thesis is that he is frustrated that despite the fact that law professors and elite lawyers are very left-wing, they aren’t as political as he would like them to be. From there, he weaves a tale about how law isn’t some specialized field requiring expertise, political science professors understand law better than lawyers do, and law professors seem to think the law exists outside the realm of politics. After constructing the world’s largest Straw Man, he knocks it down expertly.
It’s an amazing piece of work, in part because in trying to prove that there’s no such thing as legal expertise, he inadvertently shows you why it is so important to talk to experts. Because it is not hard to point to things that don’t fit at all within his thesis, if he only actually had some legal training.
Let’s start with what legal expertise is. It’s lots of things, but fundamentally, it’s about determining what the applicable legal rule is in a particular situation and advising a client or presenting a court with that information. That doesn’t sound too hard. And in some situations it is not. For instance, you can’t get the death penalty for raping someone, if nobody dies as a result of the rape. That’s a legal rule, confirmed by the Supreme Court in Coker v. Georgia and Kennedy v. Lousiana, and if a rape suspect asked you “can I get the death penalty for this”, you can simply confirm he did not kill anyone and then say “no, you can’t”.
But much of the law is not like that. For instance, in many instances, the controlling cases are not as clear, or conflict, or there are different jurisdictions that have passed on an issue but none of the cases are in your jurisdiction and are controlling. Or there is a “conflict” of law issue, as when a party in Massachusetts contracts with a party in New York and they don’t specify what law applies in the contract. Sometimes you have to analyze both bodies of law and make a prediction as to which law will be applied by a court.
There are also vague statutes, vague constitutional provisions that may limit the reach of vague statutes, treatises and Restatements and scholarship explaining various legal principles, and, yes, predictions about particular judges and courts and politics. Notice I listed that last. Politics DOES matter, and nobody denies that. But that doesn’t mean the law is nothing but politics. That’s the crucial distinction.
The point is, if your knowledge of the law comes from a few famous cases such as the high profile decisions on politically salient issues by the U.S. Supreme Court, it is easy to come to the conclusion that the law is nothing but politics because those are the most political cases. In those cases, there is a ton of briefing, but often the justices’ minds are made up before the briefing, and in those cases, the justices try to form a coalition of five votes and the reasoning is sometimes secondary to that goal.
But high end politically salient Supreme Court practice is 1/1000th of a percent of the law. Meanwhile, in most cases, courts are trying to figure out what the law is and the best lawyers help them come to a result that comports with the law and is favorable to their clients. And when they don’t think this is possible, they advise their clients to settle and compromise on their litigation goals, something that clients go along with because their lawyers have demonstrated their legal skill and have shown that their judgments and predictions can be trusted.
Every litigation lawyer has a story about “turning” a court. This is what happens when you go to a hearing and a judge, or even a 3 judge appeals panel, is set to rule against you. And then you go about answering the judge’s questions and persuading the judge that his or her initial views are wrong, or that he or she has no reason to be concerned about reversal or about setting a precedent that could lead to havoc in other cases. Yglesias makes much of a few very small sample, scientifically questionable studies in law review articles that show that, for instance, Black federal judges may be more likely to have their decisions reversed. But even if that is true (and to be clear, it would be disgraceful to the profession if it is), that doesn’t mean that all judges are doing is politics. It’s not like they are in their robing rooms at the federal courts of appeals saying “let’s reverse the Black guy!”. Lawyers win cases before judges who are hostile to their clients all the time, and appellate judges affirm judgments of cases coming from judges they don’t like all the time. (Indeed, it’s worth noting that reversal rates in general are very, very small. So even if that study turns out to be correct in its conclusion, have no illusions- the vast majority of cases coming out of ANY federal district judge’s courtroom are affirmed on appeal. Because often the law is really clear and none of the judges at either level disagree about it.)
But in many ways Yglesias’ biggest howler is the notion that political scientists understand that the law is all politics and law professors don’t understand that. If we were talking about the mid-19th Century, when legal academia was dominated by the likes of Christopher Columbus Langdell and his “scientific” theory of the law, maybe that might be true. But ever since Oliver Wendell Holmes, Jr., and his theory that “the life of the law is not logic, but experience”, became influential in the late 19th Century, almost no law professors, and certainly no liberal law professors, believe this. Nobody’s “solving cases like math problems”, like Yglesias alleges. The dominant legal theories of liberal law professors are one or another version of legal realism or critical legal studies, theories that assume that law has a heavy political element. Indeed, one of the two most popular jurisprudential theories of conservative law professors, law and economics, is also a pragmatic doctrine that takes real world impacts into account and does not treat law as a rigid system. (Only some versions of originalism really try to ignore real world impacts.)
Meanwhile, political scientists who regularly comment on legal issues are constantly predicting political outcomes of cases. You can search the Internet and verify this. They are constantly saying how the Supreme Court will do whatever the Republican Party wants it to. This, of course, is not what actually happens, yet the political scientists never back off and say “gee, maybe we should talk to some actual practitioners who get paid a lot of money to predict court outcomes about what they think might happen”. Essentially, when all you have is a hammer, everything looks like a nail, and when all you have is political science training, the law looks like it’s a purely political enterprise.
To bring this back to the point I made about legal journalism in my earlier piece, Yglesias is merely saying what a ton of journalists think about lawyers and law professors. That we are too stupid to understand that the stuff we do does not matter and that politics, or race, or other factors about judges and juries are what really decide our cases, and we think our legal system is systematic and formulaic when in fact the smart take is that it is all politics. That’s why they don’t talk to us, and that’s why they are constantly writing dumb stuff about the legal system.