The Federalist Society as whole is made up of groups of conservatives who have a variety of ideas about law and public policy. Over time, members of the Federalist Society have advanced along impressive career tracks, including playing prominent roles in presidential administrations, becoming judges, and working in a variety of other settings. The Society itself looks as though it was a means of organizing and networking to many observers. But what do we call this activity as social scientists? How can we study it and understand not only the impacts it has on the legal profession, but also in shaping public policy and law?
Within studies of the legal profession, particularly in sociology, there is a long tradition of connecting the legal profession to state structures. The work of Terence Halliday and Lucien Karpik and their collaborators, argues, for example, that the rise of political liberalism was shaped by the responses of legal professionals to changes in state and society in a variety of contexts. Ronen Shamir taught us that the lawyers during the New Deal worked diligently to “manage legal uncertainty”, while also providing us with a remarkable understanding of why the administrative state came to be as it did in that period of U.S. history. In some ways, an analysis of the Federalist Society fits nicely with this literature. Certainly, lawyers have a long history of working to change legal culture and legal structures in reaction to economic and social changes. It seems, in fact, to be one of the mechanisms by which professions in general restructure themselves and survive through decades, or even centuries. One way we might understand the Federalist Society, then, is as a recent manifestation of this age-old practice.
And yet… The legal profession is vast, and the ability of one group to restructure it in a fundamental way – such as the way the bar associations of the past restructured the legal profession and introduced the bar exam and various other requirements to the process of becoming a lawyer – seems questionable. And, depending upon how we want to understand the notion of this particular “group” – as say, limited only to the core, i.e., the board of directors, and the members who are consistently active with the organization – the ability of the Federalist Society to shape the debate is quite remarkable. The framework that might help us understand what the Federalist Society IS needs to account for the social networking that the organization fosters, the ability of those networks to place individuals into key positions, the importance of debate and ideas – all the while keeping an eye on the way ideas move from the networks into public policy and the law.
To quote political scientist John Ruggie, writing in a much different area of research, “what makes this world hang together?”
In political science, particularly in international relations, scholars have been working with a framework for some time now that was designed to help understand coordination efforts in international policymaking. The notion of an “epistemic community” as advanced by scholars including Peter Haas and John Ruggie, might help us understand the conservative legal movement – and the Federalist Society’s place in it – if we can adapt it a bit to our area of study. Let me lay out some of the parameters as the IR specialists have been working on it.
Quite often, the term “epistemic communities” has been used
to describe networks of specialists – in particular scientists – who because of
their specialized knowledge have a strong claim to possessing policy-relevant
knowledge. According to the introduction
(written by Peter Haas) of a special volume of International Organization in 1992, an epistemic community need not
be scientists – rather such communities can occur in any discipline. Epistemic communities have:
1. a shared set of normative and principled beliefs, which provide a value-based rationale for the social action of community members;
2. shared causal beliefs, which are derived from their analysis of practices leading or contributing to a central set of problems in their domain and which then serve as the basis for elucidating the multiple linkages between possible policy actions and desire outcomes;
3. shared notions of validity—that is, intersubjective, internally defined criteria for weighing and validating knowledge in the domain of their expertise;
4. a common policy to which their professional competence is directed, presumably out of the conviction that human welfare will be enhanced as a consequence. (Haas 1992, p. 3)
members of an epistemic community share intersubjective understandings; have a shred way of knowing; have shared patterns of reasoning; have a policy project drawing on shared values, shared causal beliefs, and the use of shared discursive practices; and have a shared commitment to the application and production of knowledge. (Ibid., footnote 5, p. 3)