Conservative & Libertarian Legal Scholarship: Foreword
At no other point in American history has so much legal commentary been published each year. There are more than 400 student-edited law journals and, last year alone, several thousand articles were published. The sheer mass of legal writings makes it quite difficult for lawyers, and particularly law students, to identify conservative and libertarian legal writings that may be of interest. And, significantly, law students often are not directed toward conservative and libertarian scholarship. Casebooks and other materials used in law school courses most often identify (and praise) those works that advocate various aspects of orthodox liberal ideology.
The purpose of this bibliography is simple but ambitious. It is to pull together the legal commentary-principally books and law review articles-that best present conservative and libertarian perspectives. The idea is to make this scholarship more accessible and thereby foster more serious, balanced debate about legal ideas.
The difficulty of the enterprise is obvious. Not only are there a wide variety of legal subject areas and a proliferation of commentary on them, but there are obvious difficulties in defining what is "conservative" or "libertarian," let alone what is "best."
We concede at the outset the difficulty of this task, but it seems to us that the perfect ought not be the enemy of the good. That is, even an attempt that would make no one completely happy would still perform a great service by filling a substantial void. If it prompts others to add or subtract titles from the list for future versions, or to inspire someone else to redo the list entirely, this initial compilation will make a significant contribution.
As to what is "conservative" or "libertarian," we relied most heavily on the Founders' ideals for guidance. With respect to constitutional law, for example, we searched for works that endeavored to interpret the Constitution according to its text and original meaning. In other areas of the law (e.g., torts, contracts, corporations, etc.), we looked for scholarship that embraced the Framers' ideals, which include: limited government, representative democracy, free markets, individual freedom, and personal responsibility. Commentary demonstrating a due regard for our original constitutional structure-federalism, separation of powers, and a judicial enterprise that says what the law is, not what it should be-obviously received high marks. That said, we have tried to err on the side of inclusiveness-to include, for example, some works that are originalist in method but that are not necessarily consistent with what one might view as a "conservative" or "libertarian" legal policy result. Indeed, the bibliography even includes a few works that we thought to be particularly trenchant critiques of originalism or of other conservative and libertarian approaches to legal analysis.
For the most part, the bibliography is arranged by legal subject-matter area, with the areas arranged alphabetically. The common law and constitutional law sections appear first, however, because they are the foundation for so many other areas of the law. As to the individual works, we have generally put symposia first, then books, then articles. And within each of those categories, we have tried to arrange the pieces in a logical sequence for someone doing research-with older, more general, and more revered works usually coming first.
Readers should also know that there are a variety of journals which regularly publish work of direct or indirect interest to conservative and libertarian lawyers. Happily, this number is growing; unhappily, this means that listing them risks omitting one or more. Nonetheless, it is important to provide such a list (for interested law students especially), and so we apologize ahead of time for any omissions and hope that they will be brought to our attention for future versions.
Several law journals are now devoted to publishing conservative and libertarian scholarship-the Harvard Journal of Law and Public Policy, the Public Interest Law Review, the Michigan Law and Policy Review, the Texas Review of Law and Politics, the NYU Journal of Law & Liberty, and the Georgetown Journal of Law & Public Policy. There are also some non-law journals that contain much of interest to conservative and libertarian lawyers on law-related matters. For instance, Regulation magazine, published by the Cato Institute, covers regulatory issues from a libertarian perspective; Commentary is a leading neoconservative journal of social commentary; the flagship publication of the conservative Hoover Institution is Policy Review-the Winter 1994 issue of which, incidentally, contained the reading list for pre-law students ("Pre-Law Prerequisites") out of which this monograph arose.
Conservative and libertarian organizations in addition to those already mentioned that frequently publish work of interest to lawyers include the American Enterprise Institute, Center for the Study of American Business, Citizens for a Sound Economy, Competitive Enterprise Institute, Center for Equal Opportunity, Free Congress Foundation, Hudson Institute, Individual Rights Foundation, Institute for Justice, Manhattan Institute, Pacific Legal Foundation, Pacific Research Institute, Progress and Freedom Foundation, and Washington Legal Foundation. Finally, many state-level policy organizations have been established in recent years and frequently publish law-related articles.
Most of the works listed here should be available in law school libraries, and many of the law review articles are also available on electronic databases. Those books published by nonprofit organizations are often available at no charge or at a discount for students.
Without the encouragement and support of Leonard Leo and Lee Liberman Otis of the Federalist Society, this publication would not have been possible. And, if it had been published, it would have been much less comprehensive without their intelligence and scholarship in its editing. In preparing this bibliography, we received suggestions from more law school professors and others than we can list, but we nonetheless wish to express our gratitude to them.
We would gratefully receive any suggestions for improving this compilation. Additional copies of this bibliography, or of previous Federalist Society publications-A Debate on Critical Legal Studies at the Harvard Law School; The Great Debate: Interpreting Our Written Constitution; Who Speaks for the Constitution? The Debate Over Interpretive Authority; and The ABA in Law and Social Policy: What Role?-are available from the national office of the Federalist Society.
Roger Clegg, Center for Equal Opportunity
Michael E. DeBow, Cumberland School of Law Samford University
John McGinnis, Northwestern University School of Law
Last updated March 2009