Conservative & Libertarian Pre-Law Reading List
An Introduction to American Law for Undergraduates and Others
This web site offers an annotated reading list designed to give beginning students of the American legal system a basic understanding of the fundamentals of that system, and an appreciation of the role the legal system has played in America's achievement of levels of freedom and material abundance beyond anything the world had previously seen.
A student encountering the legal system for the first time can find it a foreboding subject - complex, technical, deep. Our goal here is to demonstrate that, at one level of understanding, quite the opposite is true. The American legal system, properly understood, depends on a few basic concepts that can be quickly grasped by a serious student. The most important of these concepts are private property ownership, freedom of contract, and limited government.
Why should anyone bother to learn anything of these ideas? We offer three answers to this question. The first has to do with gratitude. Given that many people sacrificed all or a portion of their lives to bequeath us this governmental and economic system, it doesn't seem much to ask that we at least understand how it works.
The second answer is practical in a narrow sense. You may be looking at this web site hoping to earn a better grade in a college course on law. Or you may want to understand the basics of the legal system because you wish to become a lawyer, or otherwise use your knowledge of the law in your career.
The third answer is practical in a broader sense. As David Hume put it many years ago, "[i]t is seldom that liberty of any kind is lost all at once." A populace that understands the foundations of its legal system, its political freedom, and its economic success is better able to oppose political trends that threaten these foundations.
It is somewhat discouraging that American politics continues to dwell on how to increase the scope and reach of the government - along with its cost. This is particularly odd in light of the fact that in the last decade or so we witnessed the absolute failure of the Soviet alternative to our way of life. This vindication of democratic forms of government and free-market economies, over the tragic failures of statism, could not have been clearer. One might have expected the collapse of socialism to have a significant effect on U.S. politics, leading us to reconsider and restrain the seemingly inexorable growth of government in our own country.
Obviously, this has not happened. Instead, the "post-socialist" American political environment is pregnant with contradiction. On the one hand, nearly everyone acknowledges the superiority of private-property, market-driven economic systems. But at the same time, the political process in the supposedly triumphant societies of the West produces larger and larger governments and tax burdens, and more extensive regulatory controls.
Markets or Politics?
Simply put, many of the current debates in our society involve a choice between two alternatives: leaving an area of human activity to the private marketplace, versus converting the activity to one dominated by public, political dialogue and controls. Although our governing documents specified a limited federal government and presupposed a private-property, free-market economy, today we live with a vast administrative state with powers limited only by the political exigencies of the moment. President Clinton's assertion in his 1994 State of the Union address that "the era of big government is over" was and remains absurd. Nothing is a priori beyond the potential reach of the government today, as shown by recent Congressional debates over the alleged "need" for federal law on such nationally vital subjects as the availability of day care services and the service charges assessed users of automatic teller machines.
In short, as Nobel laureate James Buchanan aptly puts it, "socialism is dead, but Leviathan lives." We submit that a serious student of law and the American legal system must be able to grapple with this central paradox of our time. And yet, many students will graduate from universities for which the collapse of communism was and remains a non-event.
Unfortunately, many undergraduate instructors in the social sciences and humanities are indifferent or hostile to the lines of inquiry necessary for understanding the markets-versus-politics debate. We strongly suspect that college courses on legal issues tend to overemphasize the idea of law as a tool for social engineering, and downplay (or ignore) more conservative views of law as furthering private property rights and limiting government. (This is particularly true with respect to constitutional law; indeed, it would not be surprising to find many college students who think that constitutional law is the foundation for all other areas of law -- thus confusing public and private law, as well as the public and private sectors.) Even business students often have no systematic introduction to the comparison of markets and politics.
It is to remedy these shortcomings in the undergraduate experience that we offer the following reading list. Followed diligently, the list can help equip students with the tools to understand clearly the political and economic system in which they will live and work. Our list can be used by undergraduates taking courses on legal subjects, and by law-school-bound recent graduates (perhaps during the summer prior to their first year in law school, or at an earlier point in their studies). We hope that the list will also be used by people studying on their own, curious about the legal cornerstone of the nation in which they live so freely and so well.
The List Annotated
The reading list itself, providing full bibliographic information, follows this annotation. Most of the books and articles on the list are short and very readable, and require little or nothing in the way of prior specialized learning. Most of the books are available in inexpensive paperback editions; a remarkable amount of this material is available on the Internet.
I. Law 101. For a good introductory overview of Anglo-American law, start with About Law: A Introduction, a short book by Oxford don Tony Honore. The beginning student should then read Edward Levi's Introduction to Legal Reasoning (a classic introduction to common-law judging), and Richard Epstein's Simple Rules for a Complex World (which will eventually enjoy a status similar to Levi's). Levi and Epstein provide indispensable introductions to the genius of the common-law system and the basic common sense of traditional doctrine in the areas of contract, property, and tort law. Justice Antonin Scalia's 1989 Holmes Lecture, "The Rule of Law as a Law of Rules," is an excellent discussion of the rule of law and the role of judges. In his fascinating article "The Spontaneous Evolution of Commercial Law," Bruce Benson argues that history "casts considerable doubt" on the premise "that for markets to work government must define and enforce . . . private property rights, contract law, etc." Benson argues that many legal rules were (or could have been) generated by individuals acting voluntarily and spontaneously. For those interested in a further historical perspective on the common law, we recommend Daniel Boorstin's classic treatment of William Blackstone, The Mysterious Science of the Law.
In a comparative vein, we heartily recommend the work of four European scholars as greatly repaying serious study. Frederic Bastiat's The Law was an early (1850) and remarkably prescient warning about the tendency of modern governments to accumulate increasing amounts of arbitrary power, and thus threaten the rule of law. (The Law is quite readable, even for beginners.) Among twentieth-century assessments of this trend, Bruno Leoni's Freedom and the Law stands out as a landmark. Nobel laureate Friedrich Hayek's more demanding multi-volume Law, Legislation and Liberty (particularly volume 1, Rules and Order) is a masterpiece. Finally, we recommend J.M. Kelly's one-of-a-kind treatise, A Short History of Western Legal Theory.
II. Economics 101. To gain a fuller understanding of the law, a student should seek to understand basic microeconomics - the study of the marketplace behavior of businesses and consumers, premised on self-interest as the primary determinant of most human action.
Students with little or no background in microeconomics should read James Gwartney and Richard Stroup, What Everyone Should Know About Economics and Prosperity - a short, clearly-written gem of a book. (Students who like Gwartney and Stroup should also read the late Henry Hazlitt's classic text, Economics in One Lesson.) James Doti and Dwight Lee's The Market Economy: A Reader is an indispensable collection of excerpts from the most significant writings in classical liberal thought and market analysis. Its inclusion of Frederic Bastiat's "Candlemakers' Petition" alone is worth the price of the book. It also contains an excerpt from Friedrich Hayek's 1945 article, "The Use of Knowledge in Society," which we recommend that the student read in its entirety.
Students interested in more advanced treatments of economic theory should investigate two excellent, user-friendly, mass-market books on the subject by two very good economists: David Friedman's Hidden Order: The Economics of Everyday Life and Steven Landsburg's Armchair Economist: Economics And Everyday Experience. For a more technical treatment, see Friedman's intermediate textbook, Price Theory (which he generously makes available on his web site).
Why are some societies rich and others poor? The work of economist Paul Romer in attempting to understand the process of economic growth has gotten a good deal of attention recently, and the reading list includes several short pieces that describe his contribution to our understanding of advanced capitalist economies. For an historical perspective on the process and an explanation of the importance of stable property rights to material well-being, see Tom Bethell's recent book, The Noblest Triumph. Another resource for understanding variations among nations is The 1999 Index of Economic Freedom, by Bryan Johnson, Kim Holmes and Melanie Kirkpatrick. (As an aside, to those interested in how they can profit personally from future economic growth, we recommend Dwight Lee and Richard McKenzie's new book, Getting Rich In America.)
III. "Law and Economics." The economic approach to law offers the student a very useful map to navigate the maze of the legal system. To get the flavor of this field, read "Looking for Results," a 1997 interview of Nobel laureate Ronald Coase, the Galileo of law and economics.
The use of microeconomics to understand the basic areas of common law - property, contracts, and torts - brilliantly displayed in Mitchell Polinsky's short textbook, An Introduction to Law and Economics. In addition, Polinsky offers very clear economic analyses of law enforcement decisionmaking (chapter 10) and litigation (chapter 14) that will shed much light on the legal system for the beginning student. Polinsky assumes that his reader has no more than a bare acquaintance with the key concepts of microeconomics, and does not use math any more complicated than simple arithmetic.
A basic understanding of strategy and strategic behavior comes in handy for understanding law and other areas of life as well. A very good (and not mathematically demanding) introduction to the area known as "game theory" is Avinash Dixit and Barry Nalebuff's Thinking Strategically. Their explanations of such concepts as "decision trees" and the "prisoner's dilemma" are very useful in thinking about such puzzles as litigation and negotiation strategy and the likely pattern of government enforcement activities. (The reading list contains links to three web sites devoted to game theory - a survey of the field by Roger McCain, and two interactive versions of the prisoner's dilemma game.)
After Polinsky and Dixit/Nalebuff, students may wish to turn to other, more technical treatments of law and economics. As a first step, we suggest Judge Frank Easterbrook's article, "The Court and the Economic System." Robert Cooter and Thomas Ulen's Law and Economics is a good textbook survey of the field. More demanding is Judge Richard Posner's leading treatise, Economic Analysis of Law.
IV. Public Policy and "Public Choice." Most public policy debates can be productively analyzed using microeconomic reasoning. The classic treatment is Milton Friedman's Capitalism and Freedom. Given its age - it was first published in 1962 - this book's discussion of such issues as school vouchers and welfare reform demonstrates the durability of economic analysis in addressing public policy issues.
One of the most important developments in economics in the last 40 years is the extension of microeconomic analyses to questions of government and politics. This branch of economics, pioneered by scholars such as James Buchanan and Gordon Tullock, is known as "public choice." A good introduction to this subject is contained in Failure and Progress, by Dwight Lee and Richard McKenzie. Their chapter 7 sets out, in a very short space, the basic public-choice ideas that predict the seemingly inexorable growth of government and its attendant inefficiencies. In brief, public choice explains government growth by focusing on the efforts of small, well-organized interest groups to seek benefits (or "rents") from government, at the expense of the public at large. A student who understands this analysis of "rent-seeking" behavior has a very long head-start over others in understanding the dynamics of government in the present day.
Students interested in public choice should also read the interview of James Buchanan on the Minneapolis Federal Reserve Bank's web site, and study Patrick Gunning's very good introductory public choice text, Understanding Democracy (also available on the web).
V. Ideological Visions, Public Policy, and Law. If we had to recommend only one book to a student seeking to understand the nature of legal and political debate in this country, we would unhesitatingly name A Conflict of Visions, by economist Thomas Sowell. Sowell makes the case that there are two perspectives on human nature: one that it is essentially "unconstrained" (and thus subject to manipulation via various schemes of social engineering) and one that it is "constrained" (and thus resistant to the perfecting efforts of the government). Sowell writes very clearly, and introduces the reader to the pantheon of classical liberal thinkers, as well as the lot on the other side of his divide. (For another view of this aspect of human nature, read Karl Brunner's article, "The Perception of Man and the Conception of Society.") We also recommend Sowell's 1995 book, The Vision of the Anointed, another critique of the unconstrained vision. Sowell's web site contains links to his columns for Forbes magazine and some of his speeches and other writings, and is well worth a look.
After reading Sowell and Brunner, the student may be interested in how the constrained and unconstrained visions manifest themselves among law teachers. He should take a look at two short articles: Michael McConnell's "Four Faces of Conservative Legal Thought" and Mary Becker's "Four Faces of Liberal Legal Thought." These two pieces serve as a sort of field guide to law professors' ideologies.
In case the student has any doubt that the far left wing of the legal professoriate is indeed pretty far to the left, he should check Robert Clark's address entitled "In Critical Legal Studies, the West Is the Adversary." Clark should know: he is now the dean of the Harvard Law School, which houses a significant number of "Crits." For a strong critique of the leftist drift in American culture since the 1960s, see Robert Bork's Slouching Towards Gomorrah.
Neoconservative thinkers are an important intellectual force on a number of law-related issues (such as racial quotas and the unintended effects of government regulation), and are especially interesting because they have migrated from the unconstrained to the constrained view of human nature. The godfather of the neocons is Irving Kristol. Policy Review recently published an excellent tribute to him, "Battler for the Republic," and some of his best work is collected in Reflections of a Neoconservative: Looking Back, Looking Ahead. Political scientist James Q. Wilson is another major neoconservative scholar. His 1997 book, Moral Judgment, offers both a brief introduction to key aspects of the criminal law, as well as a critique of recent trends in the law that deemphasize individual responsibility for one's acts.
Two superb explications of libertarian thought were published in 1997: David Boaz's Libertarianism: A Primer and Charles Murray's What It Means to Be a Libertarian. The curious reader can find excerpts from key libertarian writings in David Boaz's anthology, The Libertarian Reader.
The student interested in questions of political and moral philosophy can make good use of the fine Dictionary of Key Terms for a Free and Virtuous Society, compiled by Stephen Grabill and Gregory Gronbacher. Those interested in the connection, if any, between contemporary moral philosophy and the law should look first at Arthur Leff's article, "Unspeakable Ethics, Unnatural Law," then at Phillip Johnson's more recent "Nihilism and the End of Law."
VI. Constitutional Law. There are two kinds of constitutional lawyers: those who take the text of the Constitution seriously, and those who don't. Much of what is wrong with the American polity today is traceable, directly or indirectly, to the latter, who greatly outnumber the former. Those who wish to bolster the ranks of the good guys must begin by reading . . . the Constitution. Carefully. And repeatedly. This is not at all an unpleasant undertaking, because there are few texts that better reward careful study.
The other two great American contributions to political thought are the Declaration of Independence and The Federalist Papers. There are 85 of the latter but, as Clinton Rossiter observed,
- "Those readers who do not have the energy and fixed purpose to make their way through the whole of The Federalist may wish to know that, by common consent of learned opinion, the following numbers are the cream of the eighty-five papers: 1, 2, 6, 9, 10, 14, 15, 16, 23, 37, 39, 47, 48, 49, 51, 62, 63, 70, 78, 84, 85 (ten by Hamilton, ten by Madison, one by Jay). "
- Of these 21, we would identify the three most important as No. 10 (Madison's argument that the problem of "faction" -- another term for interest-group politics -- is best addressed by an extended republic); No. 48 (Madison's discussion of the need for separation of powers in the federal government); and No. 78 (the first of six numbers by Hamilton on the judiciary, with an often quoted exposition of the doctrine of judicial review).
Students particularly interested in the Founding should read Forrest McDonald's important book, Novus Ordo Seclorum, and Thomas West's recent attempt to rescue the Founders from their detractors on the left, Vindicating the Founders.
No one has made a greater contribution to conservative legal thought over the last generation than Robert Bork, and probably no one was more important in shaping Bork's thinking than his Yale Law School colleague, the late Alexander Bickel. In 1979, Yale named Judge Bork the first Alexander M. Bickel Professor of Public Law. On this occasion, Judge Bork eloquently and concisely explained his debt to Bickel in an address entitled "The Legacy of Alexander M. Bickel." Of course, Judge Bork set out his views on constitutional law many years later and at greater length in his book, The Tempting of America.
For those who want to explore the work of Bickel, his best book was his last, The Morality of Consent. Of particular importance there is Bickel's discussion of Edmund Burke. After this exposure, the student may be interested in a discussion of the difference between constitutional rules (and constitution-writing) and statutory rules (and legislation). "The Normative Purpose of Economic 'Science': Rediscovery of an Eighteenth Century Method," by Geoffrey Brennan and James Buchanan, argues that an effective constitution should assume that all human activity, in the market and in politics as well, is self-interested. (There is an obvious relation between this decidedly unromantic view of constitutional law and Thomas Sowell's distinction between constrained and unconstrained visions of human nature.)
If a student wants to read about the historical process that deformed many areas of constitutional law, we suggest four short articles. The three by Lino Graglia develop a number of historical themes, including the distortion of the criminal law by the Warren Court and its adverse consequences for our society. Richard Epstein's article describes the damage done to the Constitution's protection of economic liberties by the Court's approval of New Deal regulatory statutes. As the titles suggest, Graglia and Epstein have vigorous writing styles that they use very effectively to proclaim their "emperor has no clothes" judgment of much of today's constitutional law. Forrest McDonald's A Constitutional History of the United States is a very good introductory survey, although it may be hard to locate.
Students particularly interested in the question of the proper role of the courts in interpreting the Constitution and our statutory laws should read Justice Antonin Scalia's book, A Matter of Interpretation.
* Classic text suggestion: John Locke, The Second Treatise of Government (available on the web).
VII. (Serious) Comic Relief. Pre-law reading lists often contain humorous pieces. Our first suggestions come from the large body of work of P.J. O'Rourke. For starters, students should read two of his best speeches - "The Liberty Manifesto" and "Closing the Wealth Gap." For advanced O'Rourke studies, we recommend his book Parliament of Whores, which is a public choice treatise laced with dead-on humor. "The U.S. government," O'Rourke writes, "is a sort of permanent frat pledge to every special interest in the nation - willing to undertake any task no matter how absurd or useless." Parliament communicates a real understanding of public choice thinking as applied to a number of topics, with a healthy dose of irreverent humor thrown in for good measure. In his most recent book, Eat the Rich, O'Rourke combines travelogue with economic and political analysis as he tries to understand the variations of wealth and poverty across the world. (The explanation has a lot to do with law.)
We are further pleased to note that humorist Dave Barry revealed himself to be something of a libertarian in an entertaining 1994 interview, "All I Think Is That It's Stupid."
VIII. Additional Resources for Independent Study. We commend to the serious student the whole of the web site of The Federalist Society, which offers a wealth of information on the law from the conservative and libertarian perspectives. In particular, the site offers the incredibly brilliant "Conservative and Libertarian Legal Scholarship: An Annotated Bibliography" (edited, naturally, by the creators of this reading list) which features an extensive Internet links page.
In addition, users of this web site should investigate four very large conservative/libertarian web sites: Town Hall (which includes, in addition to this site, the home pages of the Heritage Foundation and National Review magazine); Free-Market.Net (primarily libertarian sites); Intellectual Capital (current policy debates); and the Heartland Institute (specializing in state and local issues).
We also want to spotlight four web sites that are especially useful for college students. The first, the Foundation for Economic Education, contains an archive of back issues of its eminently readable monthly magazine, The Freeman, as well as other materials concerned with liberty and free markets.
As explained on its web site, the Institute for Humane Studies at George Mason University offers an "Independent Study Program" in which college students receive "study packets" on "Foundations of Liberty" or "Market Economics and Public Policy Issues" and work through them with professors on their own campuses, for course credit. IHS also offers an on-line "Guide to Classical Liberal Scholarship."
The Intercollegiate Studies Institute offers a wide range of materials for college students interested in learning about and preserving our heritage in a number of areas. Of particular interest is their 60-page "A Student's Guide to the Study of Law." A free copy of this publication can be obtained by calling (800) 526-7022.
For students interested in pursuing the insights of Austrian School economists, the Ludwig von Mises Institute at Auburn University offers a bibliographical "Austrian Economics Study Guide" online.
All four of these organizations - FEE, IHS, ISI and LvMI - offer short courses each summer for college and graduate students.
The Cato Institute, a libertarian think tank, offers an interesting program for self-education, apparently targeted at individuals older than traditional college students. The "Cato University" web site contains a brief description of twelve study "modules" on topics ranging from John Locke to Henry David Thoreau to Austrian economics. Included in the descriptions are "problems to ponder and discuss."
Users of this reading list should subscribe to "Center-Right," which describes itself as a "free, weeklyish e-newsletter of centrist, conservative, and libertarian ideas" offering "low traffic, high quality, thoughtful, reasoned analysis."
The Idea Channel offers for sale a fascinating array of thought-provoking videotapes, including Milton Friedman's PBS series "Free to Choose"(based on his best-selling book) and interviews of Friedrich Hayek, Gary Becker, James Buchanan, and many other worthy figures. Their catalog is available on-line. Finally, we will argue for a bit of hero worship, in an academic sense at least. There have been at least seven Nobel Prize honorees in Economic Sciences whose work greatly illuminated the workings of the market system. The official web site of the Nobel Prize Foundation contains the press releases describing the Laureates' contributions, as well as (in some instances) an autobiographical essay by the honoree. Note how many titles authored by these honorees are included in our list of suggested readings!
As good a list as we hope this is, we know it can be improved, and we will need our readers' help to maintain it and keep it up to date.
Click HERE for the full list.