The Federalist Society and Epistemic Communities

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)

 In a footnote, Haas explains that this list may not be complete. Some other notions that may be associated with them include:

 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)

 Now, keeping in mind that the authors who have worked with this framework discussed here are all international relations scholars, their ideas have been shaped by the particular dynamics that exist at that level of politics. But, the notion that groups of people with shared normative beliefs… shared causal beliefs…. Shared notions of validity… and the possibility of developing at least some common policy that is tied to their professional competency, seems to fairly accurately describe what happens when Federalist Society members gather and discuss law. The epistemology of due process and law become a part of the discussion very quickly. Not all the particulars need to be agreed upon, but the way of defining problems, understanding what norms are “good” and which are “bad”, and tying all of this to professional competency seem to be hallmarks of the conservative legal movement. The Federalist Society appears to me, at least, to be a place where these norms, beliefs, and “shared notions of validity” are transferred to others, where new ideas formed through the professional practices of the law, and where at least some of the time a common policy emerges. But the caveat I’ll make here – I think that it is also a location for the coalescence of social networks. It’s not simply one giant network – it’s the hub of the wheel of several smaller networks.

 But the epistemic community framework has another virtue – it helps us understand how networks have to position themselves over time in order to have their ideas move into public policy. According to the literature on epistemic communities, a small, healthy community can move their ideas into policy if that community manages to network its professionals into key positions. Organizations, conferences, etc. enable these communities to do just this. But more than that… Organizations and conferences can also be the sites at which various epistemic communities compete with one another for dominance – the winning epistemic community, then, gets to shape the policy. Throughout this process, conflict and debate is on-going. The networks have to work within the institutional fields that they are in and find the appropriate opportunities. And then they have to take them.

 Is it possible that this is what the Federalist Society does for the conservative legal movement? Provide a structure – i.e., a set of norms and practices – through which professional and social networkS of conservatives are able to debate, argue, and compete with one another for the most talented law students and scholars? These networks then coalesce into what we call “the conservative legal movement”, but still have to move out of the academic setting through sites of legal practices – law offices, public interest firms, governmental agencies and offices – in order to really transmit ideas into public policy. Now, some ideas don’t make it.  And, as someone who studies property rights litigation, I also think some ideas catch on in some institutional settings but not in others (see also Hans Hacker’s discussion of the Christian litigators, or Kevin DenDulk’s dissertation work on the same). One network’s ideas work in this arena of public policy with these institutions while another network’s ideas are able to move into administrative law and the executive branch. But all the while, we can see one large movement (the epistemic community) in part because all of them share not specific policy ideas, but rather a shared way of knowing and understanding their particular area of expertise (the law – not just cases, but the legal profession and legal practice).

 So my answer to my original question is a little rough – the ideas are still in development, and much work needs to be done to see if it is correct. But this is the idea: that the Federalist Society is one of the more important locations for the development of the epistemic community we know as the “conservative legal movement”. The organization helps to bring legal experts together, to shape and perpetuate norms, beliefs and practices that are embodied in the policies that seem to emanate from the conservative legal movement. It perpetuates shared beliefs and norms among legal activists that may not be shared by the larger conservative movement (cf. the Harriet Meyers debacle, for example, where the legal arm of the movement seemed to have a very different idea of what a judge’s background ought to look like then some other parts of the conservative movement). The framework has the advantages of accounting for social networks and institutional practices, while also keeping ideas and values in the picture. It may also give us some leverage in understanding how the conservative legal movement differs from the Religious Right, or from other parts of the much broader conservative movement.

 I look forward to hearing everyone’s thoughts about this.

 Works cited – all available via JSTOR:

 Haas, Peter (1989). “Do Regimes Matter? Epistemic Communities and Mediterranean Pollution Control,” International Organization, 43(3), pp. 377-403.

 Ruggie, John Gerard (1998). “What Makes the World Hang Together? Neo-Utilitarianism and the Social Constructivist Challenge,” International Organization, 52(4), pp. 855-885.

 The other essays that helped shape these thoughts can all be found in a special issue of International Organization that was titled “Knowledge, Power, and International Policy Coordination,” 46(1), Winter 1992.

 In the name of full disclosure:  Peter Haas was the Director of Graduate Studies at UMass while I was a dissertation student there.  I did not study with him, though I did spend a good deal of time talking law and norms with MJ Peterson and Neta Crawford.  They were the first to suggest this framework as one that might help us understand the conservative legal movement.  That was several years ago -- mostly because I was interested in language and rights discourse, I filed it in the back of my mind.  Many thanks to Leigh Payne at the University of Wisconsin for reminding me of the importance of ideas and expertise to epistemic communities and suggesting (again) that I think about the framework's utility to understanding the Federalist Society. 

Comments

[William Henderson]

Laura,

As someone who has observed the workings of the Federalist Society at Chicago (and noting also that some of my former classmates have, in fact, obtained key executive and judicial branch positions), I think your explanation holds together very well. The comparison to the New Deal era is particularly apt.

However, it would be great to explore the vision and ambitions of some of the Federalist Society founders and chapter leaders. To me, it is interesting to observe that ideas may, in fact, matter a great deal. And this epistemic community--the Federalist Society--has buttressed the conservative movement.

One last note: It is possible that the Federalists are disproportionately represented at elite law schools--but why? I cannot help but believe that Harriet Miers was done in, in part, by her SMU credentials--I suspect the vast majority of active and prominent Federalists, particularly in Washington, attended elite law schools. Hence, why was Bush picking such a lightweight? But I could be wrong.

Some empirical work would fill out this picture. Thanks for a interesting set of posts, bh.