This Little-Known Libertarian Training School Is Making Federal Judges More Conservative

After attending training at the Manne Economics Institute, judges are more likely to issue longer prison sentences and overturn protections for workers and the environment.

Moshe Z. Marvit December 19, 2018

(BCFC/Shutterstock)

Con­ser­v­a­tives are gen­er­al­ly under­stood to have won the courts. The U.S. Supreme Court has a far-right con­ser­v­a­tive major­i­ty, which is poised to fur­ther weak­en fed­er­al reg­u­la­to­ry agen­cies, civ­il rights and unions. The Court has moved so far to the right that Chief Jus­tice John Roberts — who has presided over the most pro-cor­po­rate Court in recent his­to­ry—may now be the Court’s new swing vote.” Sim­i­lar­ly, Repub­li­can appointees now occu­py the major­i­ty of seats on the fed­er­al courts of appeal, and Pres­i­dent Don­ald Trump has shown no signs of slow­ing his pace of judi­cial appointments.

After attending the Manne Institute, judges were also found to use the language of economics more often in their decisions.

But the raw num­bers of con­ser­v­a­tive ver­sus lib­er­al judges only tell part of the sto­ry. The more dif­fi­cult dimen­sion to quan­ti­fy is how the mas­sive edu­ca­tion­al appa­ra­tus that con­ser­v­a­tives have fund­ed and run for decades — from the Fed­er­al­ist Soci­ety net­work to judi­cial law clerk and judge train­ing pro­grams—has pushed the judi­cia­ry in ever more anti-reg­u­la­to­ry, anti-work­er and pro-incar­cer­a­tion directions.

Now, a major work­ing paper by three econ­o­mists — Elliot Ash, Daniel Chen and Suresh Naidu — shows the huge return on just a small part of this edu­ca­tion­al invest­ment. It shows that a short pri­vate train­ing pro­gram for judges has direct­ly led to judges issu­ing longer prison sen­tences and show a greater propen­si­ty to over­turn reg­u­la­tions pro­tect­ing work­ers and the environment.

Their paper looks at the effect of the Manne Eco­nom­ics Insti­tute for fed­er­al judges, a two-to-three-week law and eco­nom­ics train­ing course for fed­er­al judges run out of George Mason Uni­ver­si­ty. The Eco­nom­ics Insti­tute seeks to give judges a basic knowl­edge of eco­nom­ics prin­ci­ples … there­by improv­ing the devel­op­ment of the law and ben­e­fit­ting America’s free enter­prise system.”

In real­i­ty, the Eco­nom­ics Insti­tute, found­ed by Hen­ry Manne in 1976, pro­vides train­ing in the lib­er­tar­i­an- and con­ser­v­a­tive-lean­ing field of law and eco­nom­ics. Accord­ing to Steven Teles’ book, The Rise of the Con­ser­v­a­tive Legal Move­ment, Manne was the first orga­ni­za­tion­al entre­pre­neur” of the law and eco­nom­ics move­ment: He found insti­tu­tion­al homes for his Insti­tute, sold the idea to cor­po­rate fun­ders and made it respectable for judges to attend. Manne helped ensure that con­ser­v­a­tive law and eco­nom­ics” thought was not mere­ly a mat­ter of aca­d­e­m­ic con­cern, but that it had an imme­di­ate real world impact by encour­ag­ing judges to incor­po­rate it into their legal reasoning.

This field devel­oped into the area of law, which came of age in the 1970s and 1980s at the Uni­ver­si­ty of Chica­go, with the pro­lif­ic pro­fes­sor and fed­er­al appel­late court Judge Richard Pos­ner pro­vid­ing much of the schol­ar­ly heft. It focus­es on a cost-ben­e­fit util­i­tar­i­an analy­sis, pro­mot­ing the ideas that some­one can breach a con­tract when it is eco­nom­i­cal­ly effi­cient to do so, that labor and envi­ron­men­tal reg­u­la­tions and pro­tec­tions are harm­ful and expro­pria­tive, and that greater prison sen­tences reduce crime. Though it start­ed as a fringe school of thought, law and eco­nom­ics pro­po­nents now hold a promi­nent place in con­ser­vatism and legal practice.

By 1990, the Eco­nom­ics Insti­tute had pro­vid­ed train­ing to 40 per­cent of fed­er­al judges — Democ­rats and Repub­li­cans — includ­ing Ruth Bad­er Gins­burg and Clarence Thomas. Though Manne claimed that the effect of the Insti­tute is dif­fuse and has no direct impact on how judges decide cas­es, Ash, Chen and Naidu have shown that the impact is, in fact, huge. In order to prove this, they cre­at­ed a dataset of over 1 mil­lion judge votes across 380,000 fed­er­al appeals cas­es between 1891 and 2013, as well as 1 mil­lion crim­i­nal sen­tenc­ing deci­sions in Dis­trict Court between 1992 and 2011. They found that the lan­guage of the deci­sions, as well as the results in the deci­sions, changed sig­nif­i­cant­ly after a judge attend­ed the two-to-three-week train­ing at the Eco­nom­ics Institute.

With respect to crim­i­nal jus­tice, law and eco­nom­ics pro­po­nents push the idea that stereo­typ­ing is eco­nom­i­cal­ly effi­cient, and sim­ple deter­rence is the best way to reduce crime. As a result, the paper found that Manne atten­dance is asso­ci­at­ed with harsh­er prison sen­tences imposed.” In prac­ti­cal terms, this means that, after attend­ing the insti­tute, judges increased sen­tence lengths by an aver­age of 7 percent.

The authors also looked at how judges ruled on cas­es involv­ing the Nation­al Labor Rela­tions Board and the Envi­ron­men­tal Pro­tec­tion Agency before and after attend­ing the Manne Insti­tute, because these two agen­cies are specif­i­cal­ly crit­i­cized by pro­po­nents of law and eco­nom­ics. They found that Manne judges exhib­it a sharp and sud­den increase in propen­si­ty to vote against fed­er­al labor and envi­ron­men­tal reg­u­la­to­ry agencies.” 

After attend­ing the Manne Insti­tute, judges were also found to use the lan­guage of eco­nom­ics more often in their deci­sions. On fed­er­al appel­late courts, judges sit on three-judge pan­els. The paper found that eco­nom­ics lan­guage is con­ta­gious,” which meant that judges who sit with eco­nom­ics-trained judges start to use more eco­nom­ics language.”

The Ash, Chen and Naidu paper shows that even if Democ­rats take back the pres­i­den­cy and the Sen­ate, turn­ing the judi­cia­ry in a pro­gres­sive direc­tion will be much more dif­fi­cult than sim­ply appoint­ing new judges. Over the course of decades, law and eco­nom­ics has tak­en root in the courts and the law. To counter it, pro­gres­sives will need a coun­ter­vail­ing vision of the con­sti­tu­tion, and an edu­ca­tion­al appa­ra­tus to dis­sem­i­nate the ideas through acad­e­mia and the judiciary.

Moshe Z. Mar­vit is an attor­ney and fel­low with The Cen­tu­ry Foun­da­tion and the co-author (with Richard Kahlen­berg) of the book Why Labor Orga­niz­ing Should be a Civ­il Right.

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